The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.
Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.
Key Issues & Findings
Failure to maintain all Common Elements (Water Leak Dispute)
Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.
Orders: Petitioner’s petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1247
CC&Rs § 10(c)
Article II.E, Section 1 of the Bylaws
Article C of the CC&Rs
Analytics Highlights
Topics: condominium, maintenance dispute, common elements, water damage, burden of proof
Additional Citations:
A.R.S. § 33-1247
CC&Rs § 10(c)
A.R.S. § 32-2199.01
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Powell v. Washburn
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
Vazanno v. Superior Court
Video Overview
Audio Overview
Decision Documents
20F-H2020050-REL Decision – 802352.pdf
Uploaded 2025-10-09T03:35:05 (103.2 KB)
Briefing Doc – 20F-H2020050-REL
Administrative Hearing Brief: Biesecker v. 6100 Fifth Condominium HOA
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 20F-H2020050-REL, wherein Petitioner Ronna Biesecker alleged that the 6100 Fifth Condominium Homeowners Association (HOA) failed to fulfill its maintenance responsibilities. The Administrative Law Judge (ALJ) ultimately dismissed the petition, ruling that the Petitioner did not meet the burden of proof required to substantiate her claim.
The central conflict involved recurring water leaks in Ms. Biesecker’s condominium unit (A113). The Petitioner contended that the leaks originated from cracks in the building’s exterior stucco, which are defined as “Common Elements” and are therefore the HOA’s responsibility to repair under its governing documents and Arizona state law. In contrast, the HOA argued that the source of the water was the sliding door assembly of the upstairs unit, making its maintenance the responsibility of that unit’s owner.
The final decision rested on the weight of evidence presented. Multiple expert inspections, conducted by Olander’s and another inspector retained by the HOA, concluded that the leaks were attributable to the upstairs unit’s sliding doors. This evidence was deemed more convincing than the Petitioner’s own assessment regarding the stucco. The ALJ concluded that Ms. Biesecker failed to prove by a “preponderance of the evidence” that the damage was caused by a flaw in the common elements, leading to the dismissal of her case.
Case Overview
Case Name
Ronna Biesecker, Petitioner, vs. 6100 Fifth Condominium Homeowners Association, Respondent.
Case Number
20F-H2020050-REL
Office of Administrative Hearings (Arizona)
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Hearing Date
June 5, 2020
Decision Date
June 25, 2020
Petitioner
Ronna Biesecker, owner of unit A113
Respondent
6100 Fifth Condominium Homeowners Association, represented by Robert Eric Struse, Statutory Agent
Core Allegations and Defenses
Petitioner’s Claim (Ronna Biesecker)
• Core Allegation: The Petitioner filed a petition on March 10, 2020, alleging that the Respondent (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) § 10(c) and Arizona Revised Statutes (A.R.S.) § 33-1247 by failing to maintain the common elements of the condominium community.
• Specifics of Claim: Ms. Biesecker asserted that persistent water leaks into her unit were caused by cracks in the exterior stucco surrounding the sliding doors.
• Basis of Responsibility: She argued that because the exterior stucco is a “common element,” the HOA was legally responsible for its repair and any subsequent damage to her unit.
• Requested Action: The Petitioner had previously requested that the HOA repair the exterior leaks and had attempted to have the HOA mediate the issue with the owner of the upstairs unit.
Respondent’s Position (6100 Fifth Condominium HOA)
• Core Defense: The HOA denied any violation of its CC&Rs or state statutes.
• Specifics of Defense: The HOA maintained that the source of the water leaks was not a common element. Instead, it attributed the leaks to the sliding doors or track assemblies of the condominium unit located directly above the Petitioner’s.
• Basis of Responsibility: According to the HOA’s governing documents and state law, the maintenance of elements belonging to an individual unit (such as a sliding door) is the responsibility of that unit’s owner, not the association.
• Actions Taken: The HOA declined to “arbitrate, mediate, or serve as a third party” in the dispute between the Petitioner and the owner of the upstairs unit. It also conducted an inspection which supported its position.
Evidentiary Timeline and Key Findings
The decision was based on a sequence of events and expert assessments presented as evidence.
• January 5, 2019: Petitioner experiences the first water leak in her unit (A113) near the sliding glass door.
• January 18, 2019: An employee from Olander’s, a door installation company contacted by the Petitioner, inspects the unit. The employee’s opinion was that “the leak was coming from the unit above Petitioner and that the sliding door above Petitioner’s unit had large gaps under the threshold which allowed water to get in.”
• February 8, 2019: Nathan’s Handyman Service repairs plaster damage in the Petitioner’s unit and notes in a report that the damage was “the result of an old leak coming from above Petitioner’s unit.” The report also identified rusted wire mesh, indicating previous repairs to the area.
• March/April 2019: The HOA’s Property Manager formally refuses the Petitioner’s request to mediate the dispute with the owner of the upstairs unit.
• May 1, 2019: Petitioner emails the HOA, proposing that new cracks in the stucco pop-out at the roof level could be the source of the leak.
• October 28, 2019: A “Roof Opinion Report” from Roof Savers Locke Roofing states that no roof repairs are needed but notes the presence of “server [sic] cracking at the stucco.” The report recommends contacting a stucco or window contractor.
• November 27, 2019: Another leak occurs in the same area of the Petitioner’s unit.
• December 9, 2019: The HOA’s Property Manager and an inspector assess the water damage in the Petitioner’s unit.
• December 23, 2019: An invoice from the inspector states: “After inspecting the shared roof and building interior/exterior it appears the water damage to the lower unit is coming from the upstairs unit sliding doors or their track assemblies.”
• June 5, 2020 (Hearing Testimony):
◦ The Petitioner stated it was “obvious” the leak originated from the stucco crack.
◦ The HOA’s Statutory Agent, Robert Eric Struse, testified that the December 2019 inspection included the interior of the upstairs unit. He argued that if the stucco crack were the cause, the upstairs unit would also show internal water damage, which it did not.
Governing Documents and Statutes
The case revolved around the interpretation of responsibility as defined by the following legal framework:
• Bylaws (Article II.E, Section 1) & CC&Rs (Article C): These documents obligate the HOA to collect assessments to meet common expenses, including the “maintenance, upkeep, care, repair, [and] reconstruction… for the common elements.”
• A.R.S. § 33-1247: This Arizona statute codifies the division of maintenance responsibility. It states that “the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit.”
Conclusions of Law and Final Order
The Administrative Law Judge’s decision was based on the application of the legal standard of proof to the evidence presented.
• Burden of Proof: The ALJ established that the Petitioner bore the burden of proof to demonstrate, by a “preponderance of the evidence,” that the HOA violated the applicable statutes or CC&Rs. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”
• Central Legal Finding: The judge determined that if the water damage was caused by a flaw in the common elements, the HOA would be responsible. However, the Petitioner failed to meet her burden of proof in establishing this causal link.
• Reasoning for Decision: The ruling states: “Petitioner failed to establish by a preponderance of the evidence that the water leak and damage was attributable to the condition of the common elements. Rather, the opinions of the companies that inspected the area concluded that the leak was coming from the sliding glass door of the unit above Petitioner’s.” The collective weight of the expert opinions from Olander’s and the HOA’s inspector outweighed the Petitioner’s personal theory about the stucco cracks.
• Final Order: Based on these findings, the judge issued a final order: “IT IS ORDERED that Petitioner’s petition is dismissed.” This order is binding unless a rehearing is granted.
Study Guide – 20F-H2020050-REL
Study Guide: Biesecker v. 6100 Fifth Condominium Homeowners Association
This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 20F-H2020050-REL, concerning a dispute between condominium owner Ronna Biesecker and the 6100 Fifth Condominium Homeowners Association. The case centers on determining responsibility for water leaks affecting the Petitioner’s unit. Use the following sections to test and deepen your understanding of the facts, legal arguments, and final outcome.
——————————————————————————–
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, using only information provided in the case document.
1. Who were the Petitioner and Respondent in this case, and what was their relationship?
2. What was the central claim made by the Petitioner against the Respondent?
3. According to the Respondent, what was the source of the water leaks and who was responsible for the repair?
4. What legal standard, or “burden of proof,” did the Petitioner need to meet to win her case?
5. What two key community documents, in addition to Arizona state law, define the Respondent’s responsibility for maintaining “common elements”?
6. Summarize the findings of the two inspection reports mentioned in the evidence (from Olander’s and the December 23, 2019 invoice).
7. What was the Petitioner’s theory about the source of the leak, as stated during the hearing?
8. How did Robert Eric Struse, the Respondent’s Statutory Agent, counter the Petitioner’s theory about the stucco crack?
9. What was the final ruling, or “Order,” issued by the Administrative Law Judge?
10. Why did the Administrative Law Judge conclude that the Petitioner failed to meet her burden of proof?
——————————————————————————–
Answer Key
1. The Petitioner was Ronna Biesecker, who owned condominium unit A113. The Respondent was the 6100 Fifth Condominium Homeowners Association, of which the Petitioner was a member.
2. The Petitioner filed a petition alleging the Respondent violated its CC&Rs (§ 10(c)) and Arizona statute A.R.S. § 33-1247 by failing to maintain the common elements, which she believed were the source of water leaks in her unit.
3. The Respondent argued that the source of the water leaks was the upstairs unit’s sliding doors or track assemblies. Therefore, the responsibility for maintenance and repair belonged to the owner of that specific unit, not the Homeowners Association.
4. The Petitioner had the burden of proof to establish her claim by a “preponderance of the evidence.” This legal standard requires providing proof that convinces the trier of fact that the contention is more probably true than not.
5. The Respondent’s responsibility is defined in Article II.E, Section 1 of the community Bylaws and Section C of the CC&Rs. Both documents state the association is responsible for the maintenance and repair of common elements using assessments paid by owners.
6. An employee from Olander’s opined that the leak was coming from the unit above Petitioner’s, specifically from large gaps under the sliding door’s threshold. Similarly, the inspector’s invoice from December 23, 2019, concluded that the water damage appeared to be coming from the upstairs unit’s sliding doors or their track assemblies.
7. During the hearing, the Petitioner stated that it was “obvious” the leak was coming from a crack in the stucco in the pop-out surrounding the sliding doors at the roof level. She posited this was a common element and therefore the Respondent’s responsibility to repair.
8. Mr. Struse testified that if water were leaking through the crack in the stucco, the upstairs unit would have also sustained internal damage. He confirmed that an inspection of the inside of the upstairs unit showed this was not happening, undermining the Petitioner’s theory.
9. The Administrative Law Judge ordered that the Petitioner’s petition be dismissed.
10. The judge concluded the Petitioner failed to meet her burden of proof because the credible evidence, particularly the opinions of the companies that inspected the area, concluded the leak was coming from the sliding glass door of the unit above. The Petitioner did not establish by a preponderance of the evidence that the leak was attributable to the condition of the common elements.
——————————————————————————–
Essay Questions
The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and legal principles from the case document to support your arguments.
1. Analyze the distinction between “common elements” and an individual “unit” as defined by A.R.S. § 33-1247 and the community’s governing documents. How was this distinction central to the judge’s final decision in this case?
2. Discuss the role and weight of evidence presented during the hearing. Compare the Petitioner’s testimony and personal observations with the professional opinions from Olander’s and the inspector. Why did the judge find the professional opinions more convincing in determining the outcome?
3. Explain the legal standard of “preponderance of the evidence” as defined in the case document’s Conclusions of Law. Using specific examples from the hearing evidence, detail why Ronna Biesecker failed to meet this standard.
4. Based on the referenced community documents, what are the primary maintenance responsibilities of the 6100 Fifth Condominium Homeowners Association? How did the Respondent’s stated refusal to “arbitrate, mediate, or serve as a third party” in the dispute between unit owners align with or diverge from these responsibilities?
5. Imagine you are advising the Petitioner before the hearing. What additional evidence or types of expert testimony could she have presented to potentially change the outcome of the case and successfully prove the leak was the Respondent’s responsibility?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Tammy L. Eigenheer) from the Office of Administrative Hearings who presides over the evidentiary hearing and issues a legally binding decision and order.
A.R.S. (Arizona Revised Statutes)
The codified laws of the state of Arizona. The statutes referenced (e.g., § 33-1247) govern the responsibilities of condominium associations and the legal procedures for disputes.
Bylaws
A set of rules governing the internal operations of an organization. In this case, Article II.E, Section 1 of the Bylaws obligates the Association to maintain the common elements using assessments paid by owners.
CC&Rs (Covenants, Conditions, and Restrictions)
A legal document that outlines the rights and obligations of property owners and the homeowners association. Section C of the CC&Rs required the Association to maintain, repair, and care for the common elements.
Common Elements
Areas of the condominium property for which the homeowners association is responsible for maintenance, upkeep, care, and repair, as distinguished from an individual owner’s unit.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Ronna Biesecker, the condominium owner who alleged the homeowners association violated its duties.
Preponderance of the Evidence
The standard of proof required in this hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is established by evidence with the most convincing force.
Respondent
The party against whom a petition is filed. In this case, the 6100 Fifth Condominium Homeowners Association.
Statutory Agent
An individual designated to receive legal notices and appear on behalf of a business entity. In this case, Robert Eric Struse appeared and testified on behalf of the Respondent association.
Blog Post – 20F-H2020050-REL
Your HOA Isn’t Your Landlord: 3 Surprising Lessons from a Condo Water Leak Lawsuit
Introduction: The Dreaded Drip
It’s a scenario that strikes fear into the heart of any condo owner: the tell-tale stain on the ceiling, the damp spot on the wall, the dreaded drip of a mysterious water leak. The immediate anxiety is followed by a pressing question: “Who is responsible for fixing this, and who pays for the damage?” Many assume the answer is straightforward, but as a recent lawsuit involving the 6100 Fifth Condominium Homeowners Association demonstrates, the lines of responsibility in a condominium community are often more complicated than they appear.
This article explores a real-life court case between a condo owner and her HOA to uncover three surprising truths about condo ownership, liability, and the true role of your HOA.
——————————————————————————–
1. It’s Not Where the Damage Is, It’s Where the Leak Starts
In the case, condo owner Ronna Biesecker experienced persistent water leaks in her unit (A113) around her sliding glass door. On May 1, 2019, after observing new cracks in the exterior stucco, she “posited that the cracks could be a source of the leak.” This became the foundation of her claim: if the water was coming from the stucco—a “Common Element”—then the HOA was responsible for the repairs.
However, a year-long trail of evidence pointed in a different direction. As early as January 18, 2019, an employee from the door installation company opined that the leak was “coming from the unit above.” On February 8, 2019, a handyman repairing plaster damage stated the issue was from “an old leak coming from above.” Even a roofing report from October 28, 2019, which noted the stucco cracking, stopped short of blaming it, instead recommending the owner contact a “stucco contractor or Window Company.”
This evidence culminated in a formal inspector’s report on December 23, 2019, which concluded the water was “coming from the upstairs unit sliding doors or their track assemblies.” Because the source of the leak originated from a part of the neighbor’s private unit, the legal responsibility shifted. Based on Arizona statute A.R.S. § 33-1247, the HOA was not liable. The key lesson here is unambiguous: legal responsibility follows the source of the problem, not the location of the resulting damage.
——————————————————————————–
2. “More Probably True Than Not”: The Burden of Proof Is on You
In any lawsuit, the person bringing the complaint—in this case, the homeowner—carries the “burden of proof.” This means she had to provide enough evidence to meet a specific legal standard, which the court defined as “preponderance of the evidence.” The legal decision offers a clear definition of this standard:
“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
In simple terms, Ms. Biesecker had to convince the judge that her theory—that the leak came from the common element stucco—was more likely to be true than the HOA’s theory that it came from the neighbor’s door.
Her claim was undone by simple logic. The HOA’s Statutory Agent, Mr. Struse, provided devastating testimony, arguing that “if water was leaking through the crack in the stucco, the upstairs unit would have also had internal damage, which was not happening.” This single point made the petitioner’s theory far less probable. The judge ultimately ruled that the petitioner “failed to establish by a preponderance of the evidence that Respondent violated the provisions of the CC&Rs or Arizona statutes,” proving that an owner’s belief isn’t enough without convincing evidence.
——————————————————————————–
3. Your HOA Won’t (and Often Can’t) Settle Neighbor-to-Neighbor Fights
Before filing the lawsuit, the petitioner attempted to resolve the issue directly. On or about February 11, 2019, she contacted the owner of the unit above hers to request repairs but “did not receive a response.” Frustrated, she turned to the HOA for help. In March or April 2019, she asked the Property Manager to “help mediate the issue” between her and her neighbor.
The HOA’s response was direct and legally sound: the Property Manager “responded that it would not arbitrate, mediate, or serve as a third party to the dispute.” This is a crucial and often misunderstood takeaway for condo owners. While an HOA’s role is to manage common elements and enforce community-wide rules, it is not legally obligated—and often not permitted—to intervene in private disputes between two homeowners over damage originating from private property. Your HOA is not a landlord or a mediator for personal conflicts; it’s an administrative body with a specific and legally defined scope of authority.
——————————————————————————–
Conclusion: Know Your Lines
The lessons from this case are clear: condo living involves a complex web of overlapping responsibilities. The line between what constitutes a common element, your private property, and your neighbor’s property is legally significant and determines who is ultimately responsible when things go wrong. Understanding these distinctions isn’t just helpful—it’s essential for protecting your investment and resolving issues effectively.
Before the next problem arises, have you read your community documents to know exactly where your responsibility ends and your neighbor’s begins?
Case Participants
Petitioner Side
Ronna Biesecker(petitioner) Appeared and testified on her own behalf.
Respondent Side
Robert Eric Struse(statutory agent) 6100 Fifth Condominium Homeowners Association Appeared and presented testimony on behalf of Respondent.
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
Select all sources
778923.pdf
No emoji found
Loading
20F-H2019033-REL
1 source
This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
Select all sources
778923.pdf
No emoji found
Loading
20F-H2019033-REL
1 source
This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019003-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-03-16
Administrative Law Judge
Antara Nath Rivera
Outcome
none
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Will Schreiber
Counsel
Aaron M. Green
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association
Counsel
Mark K. Sahl
Alleged Violations
Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3
Outcome Summary
The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
Uploaded 2026-01-23T17:30:11 (42.2 KB)
20F-H2019003-REL-RHG Decision – 775433.pdf
Uploaded 2026-01-23T17:30:17 (123.4 KB)
Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
The Petitioner's dispute petition was dismissed because the Petitioner failed to meet the burden of proof that the HOA violated its governing documents regarding the denial of a retroactively submitted view fence modification.
Why this result: Petitioner failed to meet the burden of proof to establish the HOA violated its CC&Rs or Design Guidelines. Specifically, the Petitioner did not establish he rightfully sought approval prior to installing the fence.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA violated community documents by denying approval for a glass view fence installed without prior approval. The ALJ found Petitioner failed to establish the HOA violated its documents, as Petitioner did not follow required procedures for seeking approval.
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
Uploaded 2025-10-09T03:34:30 (42.2 KB)
20F-H2019003-REL-RHG Decision – 775433.pdf
Uploaded 2025-10-09T03:34:30 (123.4 KB)
Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
Cimarron Hills at McDowell Mountain Homeowners Association
Counsel
Mark K. Sahl
Alleged Violations
Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3
Outcome Summary
The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
The Administrative Law Judge dismissed the petition, finding that the Petitioners failed to establish by a preponderance of the evidence that the Respondent Homeowners Association violated A.R.S. §§ 33-1803, 33-1811, or 33-1817, or any of the cited CC&R provisions concerning intentional construction delay, conflict of interest, or retaliatory fines.
Why this result: Petitioners failed to meet the burden of proof (preponderance of the evidence) on all three issues alleged in the petition.
Key Issues & Findings
Intentional delay of construction
Petitioners alleged that Respondent intentionally delayed the approval and construction of their new home for over eleven months.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1817(B)
CC&R Article 11.2.5
Conflict of interest
Petitioners alleged that a Board Vice President and Secretary (who owned lots adjacent to Petitioners') were blocking approval of the home due to a conflict of interest.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1811
CC&R Article 4.7
Retaliatory fines
Petitioners alleged fear of prospective retaliatory imposition of fines.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1803(B)
CC&R Article 11.3
CC&R Article 12
Analytics Highlights
Topics: HOA, Planned Communities Act, Architectural Review Committee (ARC), Construction Delay, Conflict of Interest, Retaliatory Fines
Additional Citations:
A.R.S. § 33-1803
A.R.S. § 33-1803(B)
A.R.S. § 33-1811
A.R.S. § 33-1817
A.R.S. § 33-1817(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R Article 4.7
CC&R Article 11.2.5
CC&R Article 11.3
CC&R Article 12
Video Overview
Audio Overview
Decision Documents
20F-H2019020-REL Decision – 769746.pdf
Uploaded 2026-01-23T17:30:42 (191.2 KB)
Questions
Question
Does a board member have a conflict of interest just because they own a lot next to mine?
Short Answer
No. Owning a neighboring lot does not automatically create a conflict of interest or imply bias.
Detailed Answer
The ALJ reasoned that in planned communities, especially smaller ones, board and committee members will inevitably have to regulate their neighbors. Without evidence of actual animus or discriminatory intent, simply owning a contiguous lot is not a conflict of interest that prevents a member from voting on architectural plans.
Alj Quote
In any homeowners’ association, but especially In a small development having only 71 lots, the persons who volunteer to serve on homeowners’ associations’ boards and ARCs will necessarily be regulating their neighbors.
Legal Basis
A.R.S. § 33-1811
Topic Tags
Conflict of Interest
Board of Directors
Neighbors
Question
Is the Architectural Review Committee (ARC) required to help me design my home to meet the guidelines?
Short Answer
No. The ARC's role is to review submitted plans for compliance, not to assist in the design process.
Detailed Answer
While an ARC might offer guidance, the decision clarifies that their official duty is strictly to review plans against the governing documents. They are not obligated to help owners or builders design compliant structures.
Alj Quote
It is not ARC’s job to help an owner design a home that complies with Respondent’s Guidelines, only to review plans that are submitted for compliance.
Legal Basis
CC&Rs Article 11
Topic Tags
Architectural Review
Design Guidelines
HOA Obligations
Question
Can I file a complaint against my HOA because I am afraid they might fine me in the future?
Short Answer
No. You cannot base a legal complaint on the speculation of future retaliatory fines.
Detailed Answer
The Administrative Law Judge ruled that a petition cannot rely on fear of potential future actions. Unless the HOA has actually assessed a fine or penalty, a claim regarding retaliatory fines is considered speculative and will be dismissed.
Alj Quote
Any prospective prohibition on fines would be based on nothing but speculation. . . . Petitioners have not established that Respondent violated A.R.S. § 33-1803(B) or Articles 11.3 or 12 by assessing retaliatory fines or penalties against Petitioners.
Legal Basis
A.R.S. § 33-1803(B)
Topic Tags
Fines
Retaliation
Dispute Resolution
Question
Who has to prove that the HOA violated the rules in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove that the HOA violated the statutes or CC&Rs. The standard of proof is a 'preponderance of the evidence,' meaning the homeowner must show it is more likely than not that the violation occurred.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
Legal Standards
Burden of Proof
Hearings
Question
Is the HOA responsible for delays if my builder doesn't understand the design guidelines?
Short Answer
No. The HOA is not liable for delays caused by a builder's failure to submit compliant plans.
Detailed Answer
If an HOA's architectural committee is reasonably responsive to submissions, they are not at fault for construction delays resulting from a contractor's misunderstanding of the design rules or failure to meet requirements.
Alj Quote
On this record, it appears that Hoamco and the ARC were reasonably responsive . . . and that any delay in construction appears more likely based on Brilar principal’s imperfect understanding of the Guidelines’ requirements.
Legal Basis
A.R.S. § 33-1817(B)
Topic Tags
Architectural Review
Construction Delays
Vendor Issues
Question
Can I rely on my contractor's timeline estimates for when the HOA will approve my plans?
Short Answer
No. You should rely on the timelines specified in the CC&Rs and statutes, not third-party estimates.
Detailed Answer
The ALJ noted that a homeowner's expectations based on their builder's estimates are not binding on the HOA. The official governing documents determine the procedural timeline, and reliance on outside estimates does not constitute a violation by the HOA.
Alj Quote
Mrs. Holly candidly testified that Petiitoners’ expectations about how long it would take to build their house was based on Brilar’s principles’ estimates, not anything in statutes or Respondent’s CC&Rs . . .
Legal Basis
N/A
Topic Tags
Timelines
Construction
Expectations
Question
Can the HOA charge a fee for reviewing architectural plans?
Short Answer
Yes, if the CC&Rs allow for it.
Detailed Answer
The decision affirms that CC&Rs can grant the Architectural Review Committee the power to assess reasonable fees in connection with the review of plans.
Alj Quote
Article 11.3 of Respondent’s CC&Rs concerns general provisions for the ARC, including that it may assess reasonable fees in connection with its review of plans . . .
Legal Basis
CC&Rs Article 11.3
Topic Tags
Fees
Architectural Review
CC&Rs
Case
Docket No
20F-H2019020-REL
Case Title
Rick and Lisa Holly vs. La Barranca II Homeowners Association
Decision Date
2020-02-14
Alj Name
Diane Mihalsky
Tribunal
OAH
Agency
ADRE
Questions
Question
Does a board member have a conflict of interest just because they own a lot next to mine?
Short Answer
No. Owning a neighboring lot does not automatically create a conflict of interest or imply bias.
Detailed Answer
The ALJ reasoned that in planned communities, especially smaller ones, board and committee members will inevitably have to regulate their neighbors. Without evidence of actual animus or discriminatory intent, simply owning a contiguous lot is not a conflict of interest that prevents a member from voting on architectural plans.
Alj Quote
In any homeowners’ association, but especially In a small development having only 71 lots, the persons who volunteer to serve on homeowners’ associations’ boards and ARCs will necessarily be regulating their neighbors.
Legal Basis
A.R.S. § 33-1811
Topic Tags
Conflict of Interest
Board of Directors
Neighbors
Question
Is the Architectural Review Committee (ARC) required to help me design my home to meet the guidelines?
Short Answer
No. The ARC's role is to review submitted plans for compliance, not to assist in the design process.
Detailed Answer
While an ARC might offer guidance, the decision clarifies that their official duty is strictly to review plans against the governing documents. They are not obligated to help owners or builders design compliant structures.
Alj Quote
It is not ARC’s job to help an owner design a home that complies with Respondent’s Guidelines, only to review plans that are submitted for compliance.
Legal Basis
CC&Rs Article 11
Topic Tags
Architectural Review
Design Guidelines
HOA Obligations
Question
Can I file a complaint against my HOA because I am afraid they might fine me in the future?
Short Answer
No. You cannot base a legal complaint on the speculation of future retaliatory fines.
Detailed Answer
The Administrative Law Judge ruled that a petition cannot rely on fear of potential future actions. Unless the HOA has actually assessed a fine or penalty, a claim regarding retaliatory fines is considered speculative and will be dismissed.
Alj Quote
Any prospective prohibition on fines would be based on nothing but speculation. . . . Petitioners have not established that Respondent violated A.R.S. § 33-1803(B) or Articles 11.3 or 12 by assessing retaliatory fines or penalties against Petitioners.
Legal Basis
A.R.S. § 33-1803(B)
Topic Tags
Fines
Retaliation
Dispute Resolution
Question
Who has to prove that the HOA violated the rules in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove that the HOA violated the statutes or CC&Rs. The standard of proof is a 'preponderance of the evidence,' meaning the homeowner must show it is more likely than not that the violation occurred.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
Legal Standards
Burden of Proof
Hearings
Question
Is the HOA responsible for delays if my builder doesn't understand the design guidelines?
Short Answer
No. The HOA is not liable for delays caused by a builder's failure to submit compliant plans.
Detailed Answer
If an HOA's architectural committee is reasonably responsive to submissions, they are not at fault for construction delays resulting from a contractor's misunderstanding of the design rules or failure to meet requirements.
Alj Quote
On this record, it appears that Hoamco and the ARC were reasonably responsive . . . and that any delay in construction appears more likely based on Brilar principal’s imperfect understanding of the Guidelines’ requirements.
Legal Basis
A.R.S. § 33-1817(B)
Topic Tags
Architectural Review
Construction Delays
Vendor Issues
Question
Can I rely on my contractor's timeline estimates for when the HOA will approve my plans?
Short Answer
No. You should rely on the timelines specified in the CC&Rs and statutes, not third-party estimates.
Detailed Answer
The ALJ noted that a homeowner's expectations based on their builder's estimates are not binding on the HOA. The official governing documents determine the procedural timeline, and reliance on outside estimates does not constitute a violation by the HOA.
Alj Quote
Mrs. Holly candidly testified that Petiitoners’ expectations about how long it would take to build their house was based on Brilar’s principles’ estimates, not anything in statutes or Respondent’s CC&Rs . . .
Legal Basis
N/A
Topic Tags
Timelines
Construction
Expectations
Question
Can the HOA charge a fee for reviewing architectural plans?
Short Answer
Yes, if the CC&Rs allow for it.
Detailed Answer
The decision affirms that CC&Rs can grant the Architectural Review Committee the power to assess reasonable fees in connection with the review of plans.
Alj Quote
Article 11.3 of Respondent’s CC&Rs concerns general provisions for the ARC, including that it may assess reasonable fees in connection with its review of plans . . .
Legal Basis
CC&Rs Article 11.3
Topic Tags
Fees
Architectural Review
CC&Rs
Case
Docket No
20F-H2019020-REL
Case Title
Rick and Lisa Holly vs. La Barranca II Homeowners Association
Decision Date
2020-02-14
Alj Name
Diane Mihalsky
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Rick Holly(petitioner) La Barranca II Homeowners Association Member
Lisa Holly(petitioner) La Barranca II Homeowners Association Member Also referred to as Mrs. Holly
Kevin P. Nelson(petitioner attorney) Tiffany & Bosco
Brian Bracken(witness/contractor's principal) Brilar Homes, LLC Petitioners' general contractor
Larry E. Smith(witness/contractor's principal) Brilar Homes, LLC Petitioners' general contractor
Respondent Side
La Barranca II Homeowners Association(respondent) HOA party
Edward D. O’Brien(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
The Administrative Law Judge dismissed the petition, finding that the Petitioners failed to establish by a preponderance of the evidence that the Respondent Homeowners Association violated A.R.S. §§ 33-1803, 33-1811, or 33-1817, or any of the cited CC&R provisions concerning intentional construction delay, conflict of interest, or retaliatory fines.
Why this result: Petitioners failed to meet the burden of proof (preponderance of the evidence) on all three issues alleged in the petition.
Key Issues & Findings
Intentional delay of construction
Petitioners alleged that Respondent intentionally delayed the approval and construction of their new home for over eleven months.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1817(B)
CC&R Article 11.2.5
Conflict of interest
Petitioners alleged that a Board Vice President and Secretary (who owned lots adjacent to Petitioners') were blocking approval of the home due to a conflict of interest.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1811
CC&R Article 4.7
Retaliatory fines
Petitioners alleged fear of prospective retaliatory imposition of fines.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1803(B)
CC&R Article 11.3
CC&R Article 12
Analytics Highlights
Topics: HOA, Planned Communities Act, Architectural Review Committee (ARC), Construction Delay, Conflict of Interest, Retaliatory Fines
CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes
Outcome Summary
The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.
Key Issues & Findings
Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.
Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.
Orders: Petitioner’s petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Analytics Highlights
Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:
A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2019014-REL Decision – 766242.pdf
Uploaded 2026-01-23T17:30:28 (48.3 KB)
20F-H2019014-REL Decision – 766243.pdf
Uploaded 2026-01-23T17:30:31 (109.1 KB)
Briefing Doc – 20F-H2019014-REL
Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)
Executive Summary
On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.
The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.
The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.
Case Overview
This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.
Detail
Information
Case Name
Paul L Moffett vs. Vistoso Community Association
Case Number
20F-H2019014-REL
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Petition Filed
On or about September 25, 2019
Hearing Date
December 16, 2019
Decision & Order Date
January 27, 2020
Petitioner
Paul L. Moffett
Petitioner’s Counsel
Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.
Respondent
Vistoso Community Association
Respondent’s Counsel
Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
The Core Dispute: Voter Eligibility and Reduced Assessments
Petitioner’s Allegation
On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.
The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:
• Vistoso Highlands: Owner of 39 lots.
• Pulte: Owner of 168 lots.
Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.
Analysis of Arguments and Key Provisions
The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.
Key Governing Document Provisions
• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”
• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.
Petitioner’s Position (Paul L. Moffett)
The petitioner’s argument was straightforward:
• Vistoso Highlands and Pulte were paying reduced assessments.
• Section 7.3.1 prohibits voting for members who pay reduced assessments.
• Therefore, their votes should not have been counted.
Respondent’s Position (Vistoso Community Association)
The respondent’s argument focused on the precise qualifying language in the CC&Rs:
• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”
• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.
• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.
• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.
Established Findings of Fact
The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.
• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.
• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.
• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.
• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.
• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.
• March 29, 2019: The Board of Directors election was held.
• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”
The Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.
Legal Interpretation
The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.
The decision states:
“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”
The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.
Acknowledgment of Financial Discrepancy
The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”
Final Order
Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.
• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Notice: The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019014-REL
Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)
This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific article and section of the community documents did the Petitioner allege was violated?
3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?
4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?
5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?
6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?
7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?
8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?
9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?
10. What was the final order in this case, and what recourse was available to the parties after the decision?
——————————————————————————–
Answer Key
1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.
2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.
3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.
4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”
5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.
6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.
7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.
8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.
9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.
10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.
1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.
2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.
3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?
4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.
5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.
——————————————————————————–
Glossary of Key Terms and Entities
Term / Entity
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.
Article VII, Section 7.3.1
The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”
Article VIII, Section 8.3
The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Declarant
The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.
Developer Owner
An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.
Homeowners Association (HOA) Dispute Process Petition
The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.
Office of Administrative Hearings (OAH)
The state office where the formal hearing for this case was conducted before an Administrative Law Judge.
Petitioner
The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.
Respondent
The party against whom a petition is filed. In this case, the Vistoso Community Association.
Blog Post – 20F-H2019014-REL
The Legal Loophole That Flipped an HOA Election on Its Head
For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.
This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.
The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote
The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.
The community’s governing documents contained two key sections:
• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.
• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.
On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.
The Smoking Gun: Developers Were Underpaying for Years
The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.
• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.
• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.
However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.
The Twist: A Single Phrase Created a Mind-Bending Loophole
This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”
The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.
In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.
The ALJ summarized this stunning conclusion in the final decision:
Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.
The Verdict: A Financial Problem Doesn’t Invalidate a Vote
Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.
The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).
While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.
This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.
Conclusion: The Devil is Always in the Details
This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.
The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.
Case Participants
Petitioner Side
Paul L Moffett(petitioner) Appeared at hearing and testified on his own behalf
Richard M. Rollman(petitioner attorney) Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette(legal staff) Gabroy, Rollman & Bosse, P.C. Listed below Petitioner's attorney on service list
Respondent Side
Jason E. Smith(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly(witness) Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC Recipient of Order
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of Order
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Order
djones(ADRE staff) Arizona Department of Real Estate Recipient of Order
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of Order
ncano(ADRE staff) Arizona Department of Real Estate Recipient of Order
Other Participants
Sarah Nelson(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Patrick Straney(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Dennis Ottley(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes
Outcome Summary
The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.
Key Issues & Findings
Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.
Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.
Orders: Petitioner’s petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Analytics Highlights
Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:
A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2019014-REL Decision – 766242.pdf
Uploaded 2025-10-09T03:34:33 (48.3 KB)
20F-H2019014-REL Decision – 766243.pdf
Uploaded 2025-10-09T03:34:33 (109.1 KB)
Briefing Doc – 20F-H2019014-REL
Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)
Executive Summary
On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.
The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.
The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.
Case Overview
This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.
Detail
Information
Case Name
Paul L Moffett vs. Vistoso Community Association
Case Number
20F-H2019014-REL
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Petition Filed
On or about September 25, 2019
Hearing Date
December 16, 2019
Decision & Order Date
January 27, 2020
Petitioner
Paul L. Moffett
Petitioner’s Counsel
Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.
Respondent
Vistoso Community Association
Respondent’s Counsel
Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
The Core Dispute: Voter Eligibility and Reduced Assessments
Petitioner’s Allegation
On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.
The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:
• Vistoso Highlands: Owner of 39 lots.
• Pulte: Owner of 168 lots.
Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.
Analysis of Arguments and Key Provisions
The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.
Key Governing Document Provisions
• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”
• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.
Petitioner’s Position (Paul L. Moffett)
The petitioner’s argument was straightforward:
• Vistoso Highlands and Pulte were paying reduced assessments.
• Section 7.3.1 prohibits voting for members who pay reduced assessments.
• Therefore, their votes should not have been counted.
Respondent’s Position (Vistoso Community Association)
The respondent’s argument focused on the precise qualifying language in the CC&Rs:
• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”
• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.
• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.
• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.
Established Findings of Fact
The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.
• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.
• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.
• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.
• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.
• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.
• March 29, 2019: The Board of Directors election was held.
• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”
The Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.
Legal Interpretation
The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.
The decision states:
“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”
The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.
Acknowledgment of Financial Discrepancy
The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”
Final Order
Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.
• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Notice: The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019014-REL
Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)
This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific article and section of the community documents did the Petitioner allege was violated?
3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?
4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?
5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?
6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?
7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?
8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?
9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?
10. What was the final order in this case, and what recourse was available to the parties after the decision?
——————————————————————————–
Answer Key
1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.
2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.
3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.
4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”
5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.
6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.
7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.
8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.
9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.
10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.
1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.
2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.
3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?
4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.
5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.
——————————————————————————–
Glossary of Key Terms and Entities
Term / Entity
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.
Article VII, Section 7.3.1
The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”
Article VIII, Section 8.3
The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Declarant
The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.
Developer Owner
An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.
Homeowners Association (HOA) Dispute Process Petition
The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.
Office of Administrative Hearings (OAH)
The state office where the formal hearing for this case was conducted before an Administrative Law Judge.
Petitioner
The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.
Respondent
The party against whom a petition is filed. In this case, the Vistoso Community Association.
Blog Post – 20F-H2019014-REL
The Legal Loophole That Flipped an HOA Election on Its Head
For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.
This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.
The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote
The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.
The community’s governing documents contained two key sections:
• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.
• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.
On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.
The Smoking Gun: Developers Were Underpaying for Years
The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.
• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.
• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.
However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.
The Twist: A Single Phrase Created a Mind-Bending Loophole
This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”
The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.
In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.
The ALJ summarized this stunning conclusion in the final decision:
Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.
The Verdict: A Financial Problem Doesn’t Invalidate a Vote
Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.
The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).
While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.
This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.
Conclusion: The Devil is Always in the Details
This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.
The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.
Case Participants
Petitioner Side
Paul L Moffett(petitioner) Appeared at hearing and testified on his own behalf
Richard M. Rollman(petitioner attorney) Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette(legal staff) Gabroy, Rollman & Bosse, P.C. Listed below Petitioner's attorney on service list
Respondent Side
Jason E. Smith(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly(witness) Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC Recipient of Order
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of Order
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Order
djones(ADRE staff) Arizona Department of Real Estate Recipient of Order
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of Order
ncano(ADRE staff) Arizona Department of Real Estate Recipient of Order
Other Participants
Sarah Nelson(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Patrick Straney(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Dennis Ottley(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
