Kathy Padalino v. Legend Trail Parcel A

Case Summary

Case ID 22F-H2221003-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-12-08
Administrative Law Judge Sondra J. Vanella
Outcome The Administrative Law Judge ordered that the Petitioner’s Petition be dismissed after finding that the Petitioner failed to sustain her burden to establish a violation by the Respondent of the cited sections of the CC&Rs.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kathy Padalino Counsel
Respondent Legend Trail Parcel A Counsel Kelsey Dressen, Esq.

Alleged Violations

CC&Rs Article 1 Section 26, Article 4 Section 4.6, and Article 2, Section 2.4

Outcome Summary

The Administrative Law Judge ordered that the Petitioner’s Petition be dismissed after finding that the Petitioner failed to sustain her burden to establish a violation by the Respondent of the cited sections of the CC&Rs.

Why this result: Petitioner failed to prove by a preponderance of the evidence that Respondent violated the CC&Rs, and did not establish that Respondent was obligated to provide her with an individual access code separate from the one already provided to the Lot.

Key Issues & Findings

The dispute between Petitioner and Respondent arises from Community Document Conditions, Covenants, and Restrictions Article 1 Section 26, Article 4 Section 4.6, and Article 2, Section 2.4.

Petitioner filed an HOA Dispute Process Petition alleging a violation of community documents because the HOA refused to grant her a personal access gate code. Petitioner argued that as an owner and member, she was entitled to her own personal and individual access code. Respondent disputed the violation, asserting the lot already had multiple modes of access, and was not obligated to provide an additional individual code.

Orders: Petitioner’s Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs Article 1 Section 26
  • CC&Rs Article 4 Section 4.6
  • CC&Rs Article 2, Section 2.4
  • A.R.S. § 32-2199
  • ARIZ. REV. STAT. section 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)

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Gate Access, Access Code Policy
Additional Citations:

  • A.R.S. § 32-2199
  • ARIZ. REV. STAT. section 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)
  • 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

22F-H2221003-REL Decision – 930504.pdf

Uploaded 2026-04-24T11:38:19 (109.5 KB)

22F-H2221003-REL Decision – 930504.pdf

Uploaded 2026-01-23T17:39:28 (109.5 KB)

This summary addresses your request for a concise overview of the administrative hearing decision, focusing on key facts, legal issues, arguments, and the final outcome, totaling less than 4000 characters.

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Summary of Administrative Hearing Decision

Case Title: Kathy Padalino v. Legend Trail Parcel A

Hearing Date: November 22, 2021

Forum: Office of Administrative Hearings

Key Facts and Main Issue

Petitioner Kathy Padalino, a co-owner of a property within the community, filed a Homeowners Association (HOA) Dispute Process Petition alleging that Respondent Legend Trail Parcel A violated the community’s Covenants, Conditions & Restrictions (CC&Rs).

The central issue was Petitioner’s assertion that the Respondent was violating CC&Rs Article 1 Section 26, Article 4 Section 4.6, and Article 2, Section 2.4, by refusing to grant her an individual, personal access gate code. Petitioner argued that, as an Owner and Member, she was entitled to her own code, noting that the lack of a 24/7 personal code was inconvenient for long-term guests.

The Petitioner currently had four operational modes of access to the community: a vehicle fob, a functioning gate opener, a vendor code, and the four-digit lot code shared by her co-owner, Vance Gribble. Critically, Mr. Gribble had placed restrictions on Petitioner’s use of the shared lot code for her friends and family.

Key Arguments and Legal Points

Respondent’s Argument: Respondent did not dispute Petitioner’s status as an Owner or Member, but maintained that it had not violated the CC&Rs. The HOA cited its authority under CC&Rs Article 4 Section 4.3 to adopt rules regarding the management and use of common areas. The HOA’s Gate Access Policy, effective August 18, 2021, stipulates that “Each Lot will be issued a single four digit code for use by all Residents of the Lot”.

Legal Standard: The Petitioner bore the burden of proof to establish that the Respondent committed the alleged violation by a preponderance of the evidence (that the contention is more probably true than not).

Administrative Law Judge’s (ALJ) Conclusion: The ALJ found that the Petitioner failed to sustain her burden of proof.

  1. The Petitioner did not establish that the Respondent was obligated to provide her with a “personal” or “individual” access code.
  2. The Respondent had provided an access code for the Lot, in line with its policy, as well as multiple alternative methods of access.
  3. The ALJ determined that the restrictions placed on the lot’s code by the co-owner, Mr. Gribble, constituted an issue for the Petitioner to resolve with Mr. Gribble, not an issue for the Department or a violation committed by the HOA.

Outcome

The Administrative Law Judge concluded that Petitioner failed to establish a violation of the specified CC&R sections. Therefore, the Petitioner’s Petition was dismissed. This Order became binding on the parties unless a rehearing was granted.

Questions

Question

Who is responsible for proving that a violation occurred in an HOA dispute hearing?

Short Answer

The Petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden is not on the HOA to prove they are innocent. Instead, the homeowner filing the petition must prove that the HOA committed the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • Burden of Proof
  • Hearing Procedures

Question

What is the legal standard of proof required to win a hearing against an HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard means that the evidence must show that the claim is more likely true than not true. It is based on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • Legal Standards
  • Evidence

Question

If Association Rules conflict with the CC&Rs (Declaration), which document controls?

Short Answer

The Declaration (CC&Rs) prevails.

Detailed Answer

The governing documents usually establish a hierarchy. If the Board adopts rules that are inconsistent with the recorded Declaration, the Declaration is the superior document.

Alj Quote

In the event of any conflict or inconsistency between the provisions of this Declaration and the Association Rules, the provisions of this Declaration shall prevail.

Legal Basis

CC&Rs Article 4 Section 4.3

Topic Tags

  • Governing Documents
  • Rules vs CC&Rs

Question

Is an HOA obligated to provide a unique gate access code to every individual owner?

Short Answer

Not necessarily, if access is provided to the Lot.

Detailed Answer

If the HOA provides valid methods of access for a Lot (such as a shared code, key fob, or remote), they may not be legally obligated to provide a specific 'personal' code for each individual owner of that Lot.

Alj Quote

Petitioner did not establish that Respondent is obligated to provide her with a “personal” or “individual” access code.

Legal Basis

Findings of Fact / Conclusions of Law 4

Topic Tags

  • Access Rights
  • Gate Codes
  • Security

Question

Can the Administrative Law Judge resolve disputes between co-owners regarding access to the property?

Short Answer

No, disputes between co-owners are personal matters.

Detailed Answer

If one co-owner restricts another co-owner from using a shared access code, the Department of Real Estate views this as a private issue between the owners, not a violation by the HOA.

Alj Quote

Mr. Gribble, as co-owner, has placed restrictions upon Petitioner’s use of the code for the Lot. That is an issue for Petitioner to take up with Mr. Gribble, not the Department.

Legal Basis

Conclusions of Law 4

Topic Tags

  • Co-owner Disputes
  • Jurisdiction

Question

Are Association Rules as enforceable as the CC&Rs?

Short Answer

Yes, generally rules are enforceable to the same extent as the Declaration.

Detailed Answer

Once validly adopted, Association Rules regarding the management and operation of the community can be enforced just like the recorded covenants.

Alj Quote

The Association Rules shall be enforceable in the same manner and to the same extent as the covenants, conditions and restrictions set forth in this Declaration.

Legal Basis

CC&Rs Article 4 Section 4.3

Topic Tags

  • Enforcement
  • Rules

Case

Docket No
22F-H2221003-REL
Case Title
Kathy Padalino v. Legend Trail Parcel A
Decision Date
2021-12-08
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

Who is responsible for proving that a violation occurred in an HOA dispute hearing?

Short Answer

The Petitioner (the person filing the complaint) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden is not on the HOA to prove they are innocent. Instead, the homeowner filing the petition must prove that the HOA committed the violation.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)

Topic Tags

  • Burden of Proof
  • Hearing Procedures

Question

What is the legal standard of proof required to win a hearing against an HOA?

Short Answer

Preponderance of the evidence.

Detailed Answer

This standard means that the evidence must show that the claim is more likely true than not true. It is based on the convincing force of the evidence rather than just the number of witnesses.

Alj Quote

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

Legal Basis

Morris K. Udall, Arizona Law of Evidence § 5 (1960)

Topic Tags

  • Legal Standards
  • Evidence

Question

If Association Rules conflict with the CC&Rs (Declaration), which document controls?

Short Answer

The Declaration (CC&Rs) prevails.

Detailed Answer

The governing documents usually establish a hierarchy. If the Board adopts rules that are inconsistent with the recorded Declaration, the Declaration is the superior document.

Alj Quote

In the event of any conflict or inconsistency between the provisions of this Declaration and the Association Rules, the provisions of this Declaration shall prevail.

Legal Basis

CC&Rs Article 4 Section 4.3

Topic Tags

  • Governing Documents
  • Rules vs CC&Rs

Question

Is an HOA obligated to provide a unique gate access code to every individual owner?

Short Answer

Not necessarily, if access is provided to the Lot.

Detailed Answer

If the HOA provides valid methods of access for a Lot (such as a shared code, key fob, or remote), they may not be legally obligated to provide a specific 'personal' code for each individual owner of that Lot.

Alj Quote

Petitioner did not establish that Respondent is obligated to provide her with a “personal” or “individual” access code.

Legal Basis

Findings of Fact / Conclusions of Law 4

Topic Tags

  • Access Rights
  • Gate Codes
  • Security

Question

Can the Administrative Law Judge resolve disputes between co-owners regarding access to the property?

Short Answer

No, disputes between co-owners are personal matters.

Detailed Answer

If one co-owner restricts another co-owner from using a shared access code, the Department of Real Estate views this as a private issue between the owners, not a violation by the HOA.

Alj Quote

Mr. Gribble, as co-owner, has placed restrictions upon Petitioner’s use of the code for the Lot. That is an issue for Petitioner to take up with Mr. Gribble, not the Department.

Legal Basis

Conclusions of Law 4

Topic Tags

  • Co-owner Disputes
  • Jurisdiction

Question

Are Association Rules as enforceable as the CC&Rs?

Short Answer

Yes, generally rules are enforceable to the same extent as the Declaration.

Detailed Answer

Once validly adopted, Association Rules regarding the management and operation of the community can be enforced just like the recorded covenants.

Alj Quote

The Association Rules shall be enforceable in the same manner and to the same extent as the covenants, conditions and restrictions set forth in this Declaration.

Legal Basis

CC&Rs Article 4 Section 4.3

Topic Tags

  • Enforcement
  • Rules

Case

Docket No
22F-H2221003-REL
Case Title
Kathy Padalino v. Legend Trail Parcel A
Decision Date
2021-12-08
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Kathy Padalino (petitioner)
    Appeared on her own behalf

Respondent Side

  • Kelsey Dressen (attorney)
    LAW OFFICES OF CHOATE & WOOD
    Represented Respondent Legend Trail Parcel A

Neutral Parties

  • Sondra J. Vanella (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • Vance Gribble (co-owner)
    Co-owns home with Petitioner

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

Case Summary

Case ID 22F-H2221009-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2022-04-25
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sam & Pipper O' Shaughnessy Stangl Counsel
Respondent Sabino Vista Townhouse Association Counsel Nathan Tennyson

Alleged Violations

Article VI of the CC&Rs

Outcome Summary

The Administrative Law Judge deemed Petitioners the prevailing party. Respondent HOA violated Article VI of the CC&Rs by failing to maintain and remove rubbish from the natural desert area within the Common Area up to the exterior building lines, as the Board's determination not to maintain the area lacked proper authority without a CC&R amendment. The Respondent was ordered to comply with the CC&Rs and refund the Petitioners' filing fee.

Key Issues & Findings

HOA maintenance obligations for common area up to exterior building lines

Petitioners alleged the HOA failed to maintain and otherwise manage all property up to the exterior building lines and patio enclosures, specifically a natural desert area within the Common Area. The ALJ found that the CC&Rs require the Association to maintain and remove all rubbish within its property up to the exterior building lines, and the Board lacked the authority to refuse maintenance of the natural desert area without amending the CC&Rs.

Orders: Respondent is ordered to comply with the requirements of Article VI of the CC&Rs going forward and must pay Petitioners their filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

22F-H2221009-REL Decision – 959583.pdf

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22F-H2221009-REL Decision – 964651.pdf

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22F-H2221009-REL Decision – 964655.pdf

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22F-H2221009-REL Decision – 927714.pdf

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22F-H2221009-REL Decision – 927747.pdf

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Stangl v. Sabino Vista Townhouse Association: A Dispute Over Common Area Maintenance

Executive Summary

This briefing document synthesizes the key facts, arguments, and legal decisions in the administrative case of Sam & Pipper O’ Shaughnessy Stangl versus the Sabino Vista Townhouse Association. The central conflict revolves around the Association’s legal obligation, as defined by its Covenants, Conditions, and Restrictions (CC&Rs), to maintain a common area behind the Petitioners’ property.

The Petitioners alleged that the Association violated Article 6 of its CC&Rs by failing to maintain this area for over two decades, resulting in the accumulation of rubbish and the creation of a habitat for pests. The Association countered that the area in question was designated “natural desert” to serve as a buffer, and that maintaining it was not required and would be cost-prohibitive.

An initial hearing in November 2021 resulted in a decision in favor of the Petitioners. The Association was granted a rehearing, which took place in April 2022. Despite new arguments from the Association regarding budget constraints, historical precedent, and alleged interference by the Petitioners, the Administrative Law Judge (ALJ) upheld the original decision.

The final ruling on April 25, 2022, found that the language of CC&R Article 6 is unambiguous and requires the Association to maintain “all property up to the exterior building lines.” The ALJ concluded that the Board of Directors does not have the authority to unilaterally designate a common area as “unmaintained” without formally amending the CC&Rs. Consequently, the Association was ordered to comply with Article 6 and reimburse the Petitioners’ filing fee.

Case Overview

Case Name

Sam & Pipper O’ Shaughnessy Stangl, Petitioners, vs. Sabino Vista Townhouse Association, Respondent.

Case Numbers

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

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Velva Moses-Thompson

Key Dates

Petition Filed: August 6, 2021
Initial Hearing: November 8, 2021
Initial Decision: November 29, 2021
Rehearing: April 4, 2022
Final Decision: April 25, 2022

The Central Allegation: Violation of CC&R Article 6

The dispute is founded on the interpretation of Article 6 of the Sabino Vista Townhouse Association’s CC&Rs concerning “Common Maintenance.”

Key Provisions of Article 6:

Maintenance Obligation: “The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping… roofs, common elements, decorative walls, drainage… and be responsible for the rubbish removal of all areas within the common properties.”

Standard of Care: “The Board of Directors of the Association shall use a reasonably high standard of care in providing for the repair, management and maintenance of said property, so that said townhouse project will reflect high pride of ownership.”

Petitioners’ Core Claim: Filed on August 6, 2021, the petition alleged that the Association violated Article 6 by failing to maintain the property behind their townhome unit. They asserted this neglect had persisted for the approximately 24 years they had lived there, leading to overgrowth and pest infestations.

The First Hearing and Decision (November 2021)

Summary of Arguments

Petitioners (Sam & Pipper O’ Shaughnessy Stangl):

◦ Alleged observing only 12 hours of landscaping work in their immediate back area over 24 years.

◦ Claimed the accumulated rubbish and overgrowth served as a habitat for pests, specifically mentioning “a pack rat for rattlesnakes.”

◦ Submitted a photograph of a rattlesnake skin found in their backyard as evidence.

Respondent (Sabino Vista Townhouse Association):

◦ Testimony was provided by Charles Taylor Ostermeyer, secretary of the Board of Directors.

◦ Argued the area in question is a “natural desert area and underbrush” that begins 30 to 40 feet behind the homes.

◦ Initially claimed the Board had adopted a rule limiting maintenance to just 4 feet behind residences, citing Board meeting minutes. However, when pressed by the ALJ, Ostermeyer conceded that believing a formal rule was adopted “would be conjecture on my part.”

◦ Asserted it would be too costly to clear the entire region.

◦ Contended that the decision not to maintain the open desert area was a valid exercise of the “business judgment rule” applicable to non-profit organizations.

November 29, 2021 Decision

The ALJ, Velva Moses-Thompson, ruled in favor of the Petitioners.

Finding: The preponderance of the evidence showed the Respondent failed to maintain the property as required by the unambiguous language of Article 6.

Reasoning: The Respondent provided “no evidence of an Amendment to Article VI” and “no evidence of a rule properly adopted by the Board that would limit the common area to be maintained.”

Order: The Petitioners were deemed the prevailing party, and the Association was ordered to reimburse their $500 filing fee and comply with Article 6 going forward.

The Rehearing and Final Decision (April 2022)

The Association’s request for a rehearing was granted, with the new hearing held on April 4, 2022. The Association was represented by Nathan Tennyson, Esq., and presented testimony from John Polasi, a Board member and Chairman of the Landscape Committee.

Rehearing Testimony and Arguments

Petitioner Arguments (Sam O’ Shaughnessy Stangl)

Respondent Arguments (John Polasi, HOA Board)

Core Issue is Deflection: Argued the Association’s narrative was a “deflection from the main issue.” Stated the HOA focused on irrelevant topics to circumvent the court’s correct original ruling.

Area is a “Natural Buffer”: The unmaintained area has existed since 1974 and serves as a natural buffer from Tanque Verde Creek, keeping wildlife out and preventing hikers/bikers from wandering into the neighborhood.

Tree Trimming Incident: Claimed the HOA falsely accused him of “singlehandedly” stopping all tree trimming. Clarified a December 2021 interaction with a contractor (Leon’s Tree Service) lasted only 30 seconds, where he refused permission to cut three shade branches in his private front courtyard.

Petitioner Hindrance: Alleged the Petitioners actively hindered tree trimming in December 2021 by refusing the contractor entry into their courtyard and blocking their driveway with an SUV to prevent the trimming of a low-hanging branch.

Pest Infestations: Maintained that pests are a significant problem, citing a recent rattlesnake sighting on his birthday (March 21) and his personal removal of “252 packrats in the last three years.”

Pest Control is Managed: Stated the HOA contracts “Mr. Packrat” to inspect the entire property quarterly. Polasi testified he had been chairman for a year and had “never heard of a single pack rider or rattlesnake anywhere.”

Misuse of Common Area: Dismissed accusations of misusing the common area as “pure deflection.” He stated his use (grilling, sitting outdoors) was adjudicated in court 18 years prior and found to be in compliance with CC&Rs.

Petitioner Misuse of Common Area: Accused the Petitioners of violating CC&Rs by placing personal items (barbecue, smoker, tables, chairs) in the common area and cutting a hole in their patio wall for water and electric lines.

Developer’s Intent: Cited a statement from Dale Chastine, the original developer, asserting the CC&Rs were written to “strictly forbid any unfettered wild growth” and require all common areas to be maintained in the same manner.

Board Authority and Historical Precedent: Cited 2020 Board Minutes that formally designated the area “35 ft to the south of southern homeowner rear wall” as “unmaintained natural desert landscape.” Referenced 1999 minutes indicating a 4-foot maintenance rule was previously in place.

New Issues: Attempted to introduce new evidence regarding a “complete drainage channel that… is now buried under debris and soil,” but the ALJ did not admit it as it was a new allegation not in the original petition.

Budgetary Constraints: Argued that maintaining the entire two-to-four-acre area would be excessively expensive. He noted the HOA had recently spent $15,000 on front-area tree trimming and $10,000 on tree repairs, and had other costs like a new pool pump.

April 25, 2022 Final Decision

The ALJ again ruled in favor of the Petitioners, affirming the initial decision.

Core Conclusion: “Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines.”

Legal Reasoning: The CC&Rs are unambiguous and require the Association to maintain and remove rubbish from all property within its boundaries, including the area designated as “natural desert.”

Path Forward for HOA: The ALJ explicitly stated, “If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.”

Final Order: The order from the November 29, 2021 decision was reiterated: Petitioners were deemed the prevailing party, the Respondent was ordered to pay the $500 filing fee, and the Respondent was directed to comply with Article VI of the CC&Rs.

Stangl v. Sabino Vista Townhouse Association: A Case Study Guide

This study guide provides a comprehensive review of the administrative case between homeowners Sam & Pipper O’ Shaughnessy Stangl and the Sabino Vista Townhouse Association. It includes a short-answer quiz with a corresponding answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the case documents.

——————————————————————————–

Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.

1. What was the central violation alleged by the Petitioners in their August 6, 2021, petition?

2. According to Article 6 of the CC&Rs, what is the Sabino Vista Townhouse Association’s responsibility regarding property maintenance?

3. In the first hearing on November 8, 2021, what was the Respondent’s primary argument for not maintaining the area behind the Petitioners’ home?

4. What was the outcome of the first Administrative Law Judge Decision issued on November 29, 2021?

5. Who testified for the Respondent at the April 4, 2022, rehearing, and what were his roles within the Association?

6. What two historical documents did the Respondent present at the rehearing to support its maintenance policy for the area in question?

7. Describe the Respondent’s accusation against the Petitioners regarding the tree trimming service in December 2021.

8. What strategic reasons did the Respondent’s witness, John Polasi, give for leaving the desert area unmaintained?

9. In the final decision of April 25, 2022, why did the Administrative Law Judge rule against the Association despite its evidence of a board-approved maintenance plan?

10. What specific orders were issued to the Respondent in the final court decision?

——————————————————————————–

Answer Key

1. The Petitioners alleged that the Sabino Vista Townhouse Association violated Article 6 of its Covenants, Conditions, and Restrictions (CC&Rs). Specifically, they claimed the Association failed to maintain and otherwise manage all property up to the exterior lines and patio enclosures, focusing on the unkempt two-acre area behind their townhome.

2. Article 6 requires the Association to “maintain and otherwise manage all property up to the exterior building lines and patio enclosures.” This includes landscaping, common elements, and rubbish removal, and mandates that the Board of Directors use a “reasonably high standard of care” so the project reflects a high pride of ownership.

3. In the first hearing, the Respondent argued that it had applied the “business judgment rule” applicable to non-profit organizations. The Association contended it would be too costly to clear out the entire region, which it described as an open desert area with many trees and weeds.

4. The Administrative Law Judge (ALJ) found the Petitioners to be the prevailing party. The ALJ ordered the Respondent to comply with Article 6 of the CC&Rs going forward and to pay the Petitioners their filing fee of $500.00.

5. John Polasi testified for the Respondent at the rehearing. He was identified as a member of the Respondent’s Board of Directors and the Chairman of the Landscaping Committee.

6. The Respondent presented minutes from a Board Meeting in February 1999, which stated that only 4 feet behind residences were maintained, with the remainder left natural. They also presented minutes from a 2020 Board Meeting that revised this policy, designating an area 35 feet from the southern homeowner walls as the maintenance boundary.

7. The Respondent alleged that the Petitioners interfered with and prevented a tree trimming project conducted by Leon’s Tree Service. The witness claimed the Petitioners refused entry into their front patio to trim overhanging limbs and moved a vehicle into their driveway to block the work.

8. John Polasi testified that the unmaintained desert area serves as a “natural buffer.” He stated it keeps animals from the adjacent Tanque Verde Creek area from coming onto homeowner property and also prevents bikers and hikers from wandering into the neighborhood.

9. The ALJ ruled that although the Board had determined it would not maintain the natural desert area, the Board does not have the authority under its CC&Rs to refuse maintenance. The judge concluded that the CC&Rs require the Association to maintain all property up to the exterior lines and that if the Association wishes to change this, it must formally amend its CC&Rs.

10. The final order deemed the Petitioners the prevailing party and directed the Respondent to pay the Petitioners’ $500.00 filing fee within thirty days. It further ordered the Respondent to comply with the requirements of Article VI of the CC&Rs going forward.

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Essay Questions

Instructions: The following questions are designed for essay-length responses to encourage a deeper analysis of the case. Answers are not provided.

1. Analyze the legal reasoning of the Administrative Law Judge in both the initial and final decisions. Why was Article 6 of the CC&Rs consistently interpreted as unambiguous, and how did this interpretation override the Respondent’s “business judgment” defense and subsequent board resolutions?

2. Compare and contrast the evidence and arguments presented by the Respondent in the first hearing versus the rehearing. How did the Association’s defense strategy evolve, and what new evidence did it introduce in the second hearing?

3. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Using specific examples from the testimony and exhibits, explain how the Petitioners met this burden of proof and why the Respondent’s affirmative defenses failed to meet the same standard in both hearings.

4. Examine the tension between a homeowners’ association’s governing documents (like CC&Rs) and the operational decisions made by its Board of Directors. How does this case illustrate the limits of a Board’s authority to interpret or modify its responsibilities without formally amending the core documents?

5. Evaluate the various pieces of evidence introduced during the rehearing, such as the Board Minutes from 1999 and 2020, the letter from Leon’s Tree Service, and the attempted introduction of the developer’s affidavit. What role did each piece of evidence play in shaping the arguments, and why was some evidence given more weight or deemed inadmissible by the judge?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues decisions and orders. In this case, the ALJ was Velva Moses-Thompson.

Affidavit

A written statement confirmed by oath or affirmation, for use as evidence in court. An affidavit from the original developer, Dale Chastain, was presented but not admitted into evidence.

Affirmative Defense

A defense in which the defendant introduces evidence that, if found to be credible, will negate liability, even if it is proven that the defendant committed the alleged acts.

Arizona Dept. of Real Estate

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.

Business Judgment Rule

A legal principle that grants directors of a corporation (or non-profit association) immunity from liability for losses incurred in corporate transactions if the directors acted in good faith. This was used as a defense by the Respondent in the first hearing.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision. The interpretation of Article 6 of the CC&Rs was the central issue of the case.

Common Area

Property in a planned community that is owned by the homeowners’ association and intended for the use and enjoyment of all members. The dispute centered on the maintenance of a common area behind the Petitioners’ home.

Conjecture

An opinion or conclusion formed on the basis of incomplete information. A witness for the Respondent admitted his belief about a maintenance rule was “conjecture.”

Evidentiary Hearing

A formal proceeding where parties present evidence and testimony before a judge to resolve a disputed issue.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Sabino Vista Townhouse Association.

Office of Administrative Hearings

An independent state agency in Arizona where evidentiary hearings are conducted by Administrative Law Judges.

Petitioners

The party that files a petition to initiate a legal proceeding. In this case, Sam & Pipper O’ Shaughnessy Stangl.

Preponderance of the Evidence

The standard of proof in most civil cases, defined as “such proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioners had the burden of proving their case by this standard.

Rehearing

A second hearing of a case, granted upon request, to reconsider the original decision. The April 4, 2022, hearing was a rehearing, treated as a “complete and new hearing.”

Respondent

The party against whom a petition is filed. In this case, the Sabino Vista Townhouse Association.

Restrictive Covenant

A provision in a deed or other legal document that limits the use of real property. The court noted that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.

Riparian Area

An area of land adjacent to a river or stream. The Respondent’s witness described the community as being in a riparian area next to Tanque Verde Creek.

He Sued His HOA Over Landscaping and Won. They Demanded a Do-Over. He Won Again. Here Are the Lessons.

Introduction: The David vs. Goliath Tale of a Homeowner and His HOA

For many homeowners, dealing with a Homeowners Association (HOA) can feel like a constant struggle. Disputes over rules, maintenance, and responsibilities are common frustrations. But what happens when a homeowner believes their HOA is fundamentally failing to uphold its end of the bargain?

This is the story of Sam O’ Shaughnessy Stangl, a homeowner who took his HOA to court over its failure to maintain a common area behind his home. The outcome was surprising enough: he won. But when the HOA was granted a complete “do-over” hearing to re-argue the case from scratch, he won a second time.

This case, Stangl vs. Sabino Vista Townhouse Association, offers a powerful case study in the hierarchy of governing documents and the legal principle of plain language in contract law. Here are the surprising and powerful lessons from the repeated legal victory that every homeowner should know.

1. An HOA Board Vote Can’t Override Its Own Founding Documents

The HOA’s core defense was that its Board of Directors had made a decision to leave the area behind the homes as an “unmaintained natural desert.” This argument, however, proved legally insufficient across two separate hearings.

In the first hearing, board secretary Charles Taylor Ostermeyer testified that the board had decided to limit maintenance. However, when pressed by the judge, he admitted that claiming this decision was a formal “rule” would be “conjecture on my part.” For the rehearing, the association presented board member John Polaski, who formalized the argument, claiming the unmaintained area served as a “natural buffer.” To support this, they presented minutes from a 2020 board meeting, arguing that the board’s decision recorded in those minutes effectively created a new policy for that common area.

In both instances, the Administrative Law Judge delivered a decisive counter-ruling. The judge found that the association’s primary governing documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were the superior legal authority. A simple board vote recorded in meeting minutes could not nullify the binding requirements of the CC&Rs. The judge’s final order from the rehearing was unequivocal:

Although the Board determined that it would not maintain the natural desert, the Board does not have authority under its CC&Rs to refuse to maintain any of the area of its property up to the exterior building lines. … If the Association does not want to maintain any area within its property up to the exterior building lines, the Association should amend its CC&Rs.

This is a critical lesson for every homeowner. The CC&Rs function as a legally binding contract between the association and its members. A simple board resolution, a new rule, or a long-standing “tradition” cannot legally contradict the foundational covenants.

2. When the Contract is Clear, “All” Simply Means All

The entire case ultimately hinged on a single sentence in Article VI of the Sabino Vista Townhouse Association CC&Rs. This piece of text was so clear and powerful that the judge cited it as the deciding factor in both the original hearing and the rehearing. The language stated:

“The Association, or its duly authorized representative, shall maintain and otherwise manage all property up to the exterior building lines and patio enclosures including but not limited to the landscaping…”

The HOA attempted to argue around this plain language. Its representatives claimed that maintaining the entire area was too costly, that it had been unmaintained since the community was built in 1974, and that it was a “riparian area” (land adjacent to a river or stream) that should be left wild.

In both hearings, the judge rejected these arguments. The word “all” was not open to interpretation. The language of the CC&Rs was unambiguous and therefore had to be enforced as it was written. This illustrates a fundamental legal principle: when contract language is clear, arguments about convenience, cost, or past practice often fail when pitted against the plain text of a governing legal document.

3. Facts are Stubborn, Even in a “Complete New Hearing”

In a highly unusual procedural twist, after losing the first hearing in November 2021, the HOA was granted a “re-hearing” in April 2022. This was not an appeal, which reviews an original decision for errors, but a complete strategic reset. The judge explained its legal significance:

“And this is a re-hearing. So it is a complete and new hearing. … as if the first hearing didn’t happen.”

The HOA used this second chance to launch a new strategy. While the first hearing’s defense centered on cost and a vague, unwritten policy, the second hearing featured a new witness and a new, two-pronged approach: formalizing the “natural buffer” argument and adding an ad hominem strategy that attempted to portray Mr. Stangl as an uncooperative resident who had personally interfered with tree trimming.

But while the HOA’s tactics shifted, the central fact of the case could not be changed. The text of the CC&Rs was the same in April 2022 as it was in November 2021. The final outcome was identical to the first. The judge once again ruled in favor of the homeowner, ordering the HOA to comply with its own CC&Rs and to reimburse Mr. Stangl’s $500 filing fee.

This demonstrates a key legal reality: while procedural tactics can create new opportunities for argument, they cannot alter the foundational text of a contract. The HOA’s strategy shifted, but the CC&Rs—the central fact of the case—remained immutable.

Conclusion: A Final Takeaway for Every Homeowner

The case of Stangl vs. Sabino Vista Townhouse Association offers three profound takeaways for homeowners: the CC&Rs are supreme over board decisions, the plain language of those documents is incredibly powerful, and a fact-based argument is resilient. It serves as a potent reminder that an association’s governing documents are not just suggestions—they are enforceable contracts.

The next time you question an HOA policy, will you stop at their latest newsletter, or will you go back to the source?

Case Participants

Petitioner Side

  • Sam O' Shaughnessy Stangl (petitioner)
  • Pipper O' Shaughnessy Stangl (petitioner)
  • Dale Chastine (developer/witness)
    Original developer who provided an affidavit supporting petitioners
  • Lisa Chastine (witness)
    Signed father's affidavit as a witness

Respondent Side

  • Blake R. Johnson (HOA attorney)
    The Brown Law Group, PLLC
  • Nathan Tennyson (HOA attorney)
    The Brown Law Group, PLLC
    Appeared for rehearing; also referred to as Nathan Henderson in transcript
  • Charles Taylor Ostermeyer (board member)
    Sabino Vista Townhouse Association
    Secretary of Board; testified at original hearing
  • John Polasi (board member)
    Sabino Vista Townhouse Association
    Chairman of the Landscaping Committee; testified at rehearing
  • Leon (contractor)
    Leon's Tree Service
    Tree trimmer hired by HOA; provided a signed statement/testimony

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Email recipient
  • c. serrano (clerk)
    Transmitted order
  • Miranda Alvarez (clerk)
    Transmitted order

Other Participants

  • Barbara Barski (property manager)
    Former manager of the association

Vance Gribble v. Legend Trail Community Association

Case Summary

Case ID 22F-H2221004-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-04
Administrative Law Judge Velva Moses-Thompson
Outcome The petition was dismissed because the Petitioner failed to meet the burden of proof necessary to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited Declaration Articles.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Vance Gribble Counsel
Respondent Legend Trail Community Association Counsel Josh Bolen, Esq.

Alleged Violations

A.R.S. § 33-1808(E); Article 1 § 18 of the Declaration; Article 3 § 5 of the Declaration

Outcome Summary

The petition was dismissed because the Petitioner failed to meet the burden of proof necessary to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited Declaration Articles.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or Article 3 § 5/Article 1 § 18 of the Declaration.

Key Issues & Findings

HOA rule adoption/enforcement regarding motorized vehicle use (ATVs/scooters)

Petitioner alleged the Association improperly prohibited the use of ATVs and motorized scooters on Association streets via e-mails (March 31, 2021, and June 21, 2021). The Association contended these were not rules and no formal enforcement action was taken.

Orders: Petitioner Vance Gribble’s petition against Respondent Legend Trail Community Association is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1808(E)
  • A.R.S. § 33-1808(F)
  • Article 1 § 18 of the Declaration
  • Article 3 § 5 of the Declaration

Analytics Highlights

Topics: Recreational Activity, Motorized Vehicles, ATVs, Scooters, Rule Adoption, Declaration, Common Area
Additional Citations:

  • A.R.S. § 33-1808(E)
  • A.R.S. § 33-1808(F)
  • Article 1 § 18 of the Declaration
  • Article 3 § 5 of the Declaration
  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16
  • A.R.S. §§ 33-3101 to 33-11702
  • A.R.S. § 10-3140
  • 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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Video Overview

Audio Overview

Decision Documents

22F-H2221004-REL Decision – 922828.pdf

Uploaded 2026-01-23T17:39:42 (100.5 KB)

This summary pertains to the Administrative Law Judge Decision in the case of Vance Gribble v. Legend Trail Community Association. The hearing was held on October 15, 2021, before the Office of Administrative Hearings, concerning a petition filed under the authority of the Arizona Department of Real Estate.

Key Facts and Issues

Vance Gribble, a homeowner in Parcel A of the Legend Trail development, filed a petition alleging the Legend Trail Community Association (HOA) violated Arizona Revised Statutes (A.R.S.) § 33-1808(E) and specific provisions of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs).

The core issue stemmed from two emails the Association sent concerning the use of ATVs and motorized scooters on community streets. The initial March 31, 2021, email broadly stated these vehicles were "not allowed" on Legend Trail streets. Gribble argued this communication prohibited the use of these vehicles, causing children to cease driving scooters on Association streets.

The Association responded, arguing the initial email was erroneously sent to the entire community and was intended only for Parcel A. A subsequent June 21, 2021, email was sent for clarification, specifying that restrictions regarding motorized vehicles applied only to private streets (Common Areas like Parcels A and E), where the respective Parcel Associations have a legal duty to maintain safety. The Association maintained it had not adopted a formal rule prohibiting the use of ATVs or scooters on the streets of Legend Trail and thus A.R.S. § 33-1808(E) (related to signs) was inapplicable.

Legal Points and Decision

The Petitioner bore the burden of proof to establish the Association violated the governing statutes or CC&Rs by a preponderance of the evidence.

The Administrative Law Judge focused on whether the Association took formal action to establish a rule or prohibition. A.R.S. § 10-3140 defines an "Act of the board of directors" or "Act of the members" as requiring a majority vote or written consent.

The conclusion of law found that there was no evidence presented showing the Association adopted a rule or took formal enforcement action regarding ATVs and scooters pursuant to A.R.S. § 10-3140. Furthermore, the preponderance of the evidence did not show that the Association prohibited children from engaging in recreational activity within Legend Trail (as potentially implied by A.R.S. § 33-1808(F)).

Outcome

Because the Petitioner failed to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited articles of the Declaration, the Administrative Law Judge ordered that Vance Gribble’s petition be dismissed.

{ “case”: { “docket_no”: “22F-H2221004-REL”, “case_title”: “Vance Gribble vs. Legend Trail Community Association”, “decision_date”: “2021-11-04”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof required to win a hearing against an HOA?”, “short_answer”: “The petitioner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “Homeowners filing a petition bear the responsibility of proving that the HOA violated the law or the CC&Rs. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “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); A.A.C. R2-19-119(A) and (B)(1)”, “topic_tags”: [ “legal standards”, “burden of proof”, “procedure” ] }, { “question”: “Can an HOA prohibit children from playing or riding scooters on residential streets?”, “short_answer”: “No, state law prevents HOAs from banning children’s recreational activities on residential roadways with speed limits of 25 mph or less.”, “detailed_answer”: “The decision notes that notwithstanding community documents, an association cannot prohibit resident children from engaging in recreational activity on residential roadways under the association’s jurisdiction where the speed limit is 25 mph or less.”, “alj_quote”: “Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.”, “legal_basis”: “A.R.S. § 33-1808(F) (cited as § 1803(F) in decision footnote)”, “topic_tags”: [ “homeowner rights”, “children”, “recreation” ] }, { “question”: “Does an email sent by the HOA automatically count as an official rule?”, “short_answer”: “No, an email does not constitute a formal rule if it was not adopted through an official act of the board.”, “detailed_answer”: “To be an official act, the board must usually vote at a meeting or provide written consent in accordance with statutes. In this case, emails sent in error or for clarification were not considered adopted rules or formal enforcement actions.”, “alj_quote”: “There was no evidence that the Association adopted a rule or took enforcement action against the residents… There was no evidence presented that the Association took formal action pursuant to A.R.S. §10-3140.”, “legal_basis”: “A.R.S. § 10-3140”, “topic_tags”: [ “procedural requirements”, “HOA communications”, “rulemaking” ] }, { “question”: “Can the HOA enforce traffic or safety violations on public streets?”, “short_answer”: “Generally no, unless the restriction is specifically in the CC&Rs (like parking).”, “detailed_answer”: “On public streets, the HOA’s authority is limited to enforcing restrictions explicitly contained in the CC&Rs. They do not have general authority to police moving violations or safety concerns; those are matters for local law enforcement.”, “alj_quote”: “Legend Trail Community Association may only enforce public street restrictions that are contained in the CC&R Declaration… the Association does not have the authority to address any moving violations or safety concerns on the public streets.”, “legal_basis”: “CC&R Declaration”, “topic_tags”: [ “public streets”, “enforcement”, “jurisdiction” ] }, { “question”: “What defines a ‘preponderance of the evidence’?”, “short_answer”: “It is proof that convinces the judge that a claim is ‘more probably true than not.'”, “detailed_answer”: “This legal standard does not require removing all doubt. It requires evidence that has superior weight and is sufficient to incline a fair mind to one side of the issue rather than the other.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “How are CC&Rs and restrictive covenants interpreted by the judge?”, “short_answer”: “They are interpreted as a whole to give effect to the underlying purpose and the intent of the parties.”, “detailed_answer”: “If a covenant is unambiguous, it is enforced based on the intent. The document is viewed in its entirety rather than isolating specific clauses.”, “alj_quote”: “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “CC&Rs”, “legal interpretation” ] } ] }

{ “case”: { “docket_no”: “22F-H2221004-REL”, “case_title”: “Vance Gribble vs. Legend Trail Community Association”, “decision_date”: “2021-11-04”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof required to win a hearing against an HOA?”, “short_answer”: “The petitioner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “Homeowners filing a petition bear the responsibility of proving that the HOA violated the law or the CC&Rs. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “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); A.A.C. R2-19-119(A) and (B)(1)”, “topic_tags”: [ “legal standards”, “burden of proof”, “procedure” ] }, { “question”: “Can an HOA prohibit children from playing or riding scooters on residential streets?”, “short_answer”: “No, state law prevents HOAs from banning children’s recreational activities on residential roadways with speed limits of 25 mph or less.”, “detailed_answer”: “The decision notes that notwithstanding community documents, an association cannot prohibit resident children from engaging in recreational activity on residential roadways under the association’s jurisdiction where the speed limit is 25 mph or less.”, “alj_quote”: “Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.”, “legal_basis”: “A.R.S. § 33-1808(F) (cited as § 1803(F) in decision footnote)”, “topic_tags”: [ “homeowner rights”, “children”, “recreation” ] }, { “question”: “Does an email sent by the HOA automatically count as an official rule?”, “short_answer”: “No, an email does not constitute a formal rule if it was not adopted through an official act of the board.”, “detailed_answer”: “To be an official act, the board must usually vote at a meeting or provide written consent in accordance with statutes. In this case, emails sent in error or for clarification were not considered adopted rules or formal enforcement actions.”, “alj_quote”: “There was no evidence that the Association adopted a rule or took enforcement action against the residents… There was no evidence presented that the Association took formal action pursuant to A.R.S. §10-3140.”, “legal_basis”: “A.R.S. § 10-3140”, “topic_tags”: [ “procedural requirements”, “HOA communications”, “rulemaking” ] }, { “question”: “Can the HOA enforce traffic or safety violations on public streets?”, “short_answer”: “Generally no, unless the restriction is specifically in the CC&Rs (like parking).”, “detailed_answer”: “On public streets, the HOA’s authority is limited to enforcing restrictions explicitly contained in the CC&Rs. They do not have general authority to police moving violations or safety concerns; those are matters for local law enforcement.”, “alj_quote”: “Legend Trail Community Association may only enforce public street restrictions that are contained in the CC&R Declaration… the Association does not have the authority to address any moving violations or safety concerns on the public streets.”, “legal_basis”: “CC&R Declaration”, “topic_tags”: [ “public streets”, “enforcement”, “jurisdiction” ] }, { “question”: “What defines a ‘preponderance of the evidence’?”, “short_answer”: “It is proof that convinces the judge that a claim is ‘more probably true than not.'”, “detailed_answer”: “This legal standard does not require removing all doubt. It requires evidence that has superior weight and is sufficient to incline a fair mind to one side of the issue rather than the other.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “How are CC&Rs and restrictive covenants interpreted by the judge?”, “short_answer”: “They are interpreted as a whole to give effect to the underlying purpose and the intent of the parties.”, “detailed_answer”: “If a covenant is unambiguous, it is enforced based on the intent. The document is viewed in its entirety rather than isolating specific clauses.”, “alj_quote”: “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “CC&Rs”, “legal interpretation” ] } ] }

Case Participants

Petitioner Side

  • Vance Gribble (petitioner)
    Appeared on behalf of himself

Respondent Side

  • Josh Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Terri Klein (witness)
    Association's Board of Directors
    President of the Association's Board of Directors

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate

Brian D Sopatyk v. Xanadu Lake Resort Condominium, Inc.

Case Summary

Case ID 21F-H2121065-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-01
Administrative Law Judge Velva Moses-Thompson
Outcome Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian D. Sopatyk Counsel Jacob A. Kubert, Esq.
Respondent Xanadu Lake Resort Condominium, Inc. Counsel Penny L. Koepke, Esq.

Alleged Violations

CC&R Article 2 § 3(a)(2)
CC&R Article 3 § 3(d)(1)
CC&R Article 6 § 2(a)

Outcome Summary

Petitioner was deemed the prevailing party regarding Issues 1 and 3, while Respondent was deemed the prevailing party regarding Issue 2. Respondent was ordered to pay Petitioner his filing fee of $1,000.00. No civil penalty was found appropriate.

Why this result: Petitioner lost Issue 2 because he failed to prove the Respondent's no-pet policy was arbitrarily or unreasonably applied.

Key Issues & Findings

Alleged violation of CC&R Article 2 § 3(a)(2)

The Administrative Law Judge (ALJ) concluded that screen doors are not permitted in Xanadu under CC&R Article 2 § 3(a)(2), and CC&R Article 7 (Architectural Committee authority) does not override this explicit prohibition.

Orders: Respondent is directed to comply with the requirements of CC&R Article 2 § 3(a)(2) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 2 § 3(a)(2)
  • CC&R Article 7

Alleged violation of CC&R Article 3 § 3(d)(1)

Petitioner alleged violation concerning the 'no-pet' policy. The ALJ concluded that Respondent is not required to allow pets, but may allow them with Board approval, and the Petitioner did not establish that the policy was arbitrarily or unreasonably applied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&R Article 3 § 3(d)(1)
  • A.R.S. § 12-548

Alleged violation of CC&R Article 6 § 2(a)

The ALJ concluded that the marquee is common area, and the Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence the $50 assessment complied with CC&R Article 6 § 5 (special assessment requirements).

Orders: Respondent is directed to comply with the requirements of CC&R Article 6 § 2(a) going forward.

Filing fee: $0.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • A.R.S. § 12-548

Analytics Highlights

Topics: HOA Governance, Condominium, CC&R Violation, Assessment Dispute, Architectural Control, Pet Policy, Statute of Limitations Defense
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 12-548
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • 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 2 § 3(a)(2)
  • CC&R Article 3 § 3(d)(1)
  • CC&R Article 6 § 2(a)
  • CC&R Article 6 § 5
  • CC&R Article 7

Video Overview

Audio Overview

Decision Documents

21F-H2121065-REL Decision – 913797.pdf

Uploaded 2026-04-24T11:37:41 (41.8 KB)

21F-H2121065-REL Decision – 913859.pdf

Uploaded 2026-04-24T11:37:47 (5.9 KB)

21F-H2121065-REL Decision – 921820.pdf

Uploaded 2026-04-24T11:37:55 (100.1 KB)

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This summary outlines the proceedings, arguments, and final decision in the matter of *Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.*, heard before the Office of Administrative Hearings (OAH).

Key Facts and Proceedings

The Petitioner, Brian D. Sopatyk, a unit owner and member of the Respondent condominium association (Xanadu Lake Resort Condominium, Inc.), filed a triple-issue petition on or about June 29, 2021, alleging violations of the Covenants, Conditions, and Restrictions (CC&Rs). The matter was referred to the OAH for an evidentiary hearing. The hearing took place on September 21, 2021, with Administrative Law Judge (ALJ) Velva Moses-Thompson presiding. The record was held open until October 12, 2021, solely for receiving post-hearing briefs concerning the application of the affirmative defense of the Statute of Limitations. The Arizona Department of Real Estate has jurisdiction over these types of petitions regarding alleged condominium association violations.

Main Issues and Arguments

Petitioner Sopatyk brought three claims, asserting the Respondent violated specific CC&R articles:

  1. Issue 1 (Screen Doors): Whether Respondent violated CC&R Article 2 § 3(a)(2) by directing and authorizing the installation of security screen doors, which are external items generally prohibited. Respondent argued the Architectural Committee had the authority to allow the installations under CC&R Article 7.
  2. Issue 2 (Pets): Whether Respondent violated CC&R Article 3 § 3(d)(1) by barring pets without guidelines. Respondent contended that this CC&R article does not require them to allow pets.
  3. Issue 3 (Marquee Assessment): Whether Respondent violated CC&R Article 6 § 2(a) by levying a $50 monthly fee on commercial units for marquee repair costs. Petitioner argued repairs must be paid out of the reserve fund derived from regular common expenses. Respondent countered that the $50 charge was a rental fee for unit owners advertising on the marquee, not an unauthorized assessment.

The Respondent also raised the affirmative defense that A.R.S. § 12-548 (Statute of Limitations) barred Issues 2 and 3.

Key Legal Points and Final Decision

The ALJ issued a decision on November 1, 2021, relying on the principle that unambiguous restrictive covenants must be enforced to give effect to the intent of the parties.

  1. Statute of Limitations: The ALJ rejected the defense, concluding that A.R.S. § 12-548 is inapplicable because that statute pertains to actions for debt evidenced by a written contract, which the petition was not.
  2. Issue 1 (Screen Doors): Petitioner prevailed. The ALJ concluded that screen doors are absolutely not permitted under CC&R Article 2 § 3(a)(2). CC&R Article 7 granting authority to the Architectural Committee cannot override the clear bar established by Article 2 § 3(a)(2), as doing so would render the prohibition meaningless.
  3. Issue 2 (Pets): Respondent prevailed. The CC&R permits, but does not require, the Board to allow pets. The Petitioner failed to prove by a preponderance of the evidence that the consistent prohibition of pets was arbitrarily or unreasonably applied.
  4. Issue 3 (Marquee Assessment): Petitioner prevailed. The ALJ concluded the marquee is part of the common area. The Association was not authorized under CC&R Article 6 § 2(a) to charge a separate assessment or rental fee for its use. Furthermore, there was no evidence that the $50 charge complied with the requirements for imposing a special assessment under CC&R Article 6 § 5.

Outcome: The Petitioner was deemed the prevailing party regarding Issues 1 and 3, and the Respondent prevailed regarding Issue 2. The Respondent was ordered to comply with CC&R Article 2 § 3(a)(2) and Article 6 § 2(a) going forward. Respondent was further ordered to pay Petitioner his filing fee of $1,000.00 within thirty days. No civil penalty was imposed.

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Questions

Question

Can the HOA Board or Architectural Committee authorize an improvement (like a screen door) if the CC&Rs explicitly ban it?

Short Answer

No. The Board cannot use its general approval powers to override specific prohibitions in the CC&Rs.

Detailed Answer

Even if an Architectural Committee has the authority to approve improvements, they cannot authorize items that are specifically prohibited by other sections of the CC&Rs. Doing so would render the specific prohibition meaningless.

Alj Quote

If Respondent were permitted to authorize the installation of screen doors through the approval of the Architectural Committee, the bar in CC&R Article 2 § 3(a)(2) would have no meaning.

Legal Basis

Contract Interpretation

Topic Tags

  • Architectural Control
  • Board Authority
  • CC&R Interpretation

Question

If the CC&Rs say pets are allowed 'with Board permission,' does the Board have to let me have a pet?

Short Answer

No. The Board has discretion to deny permission.

Detailed Answer

If the CC&Rs state that animals are not allowed without express permission, the Board is not required to grant that permission. As long as the Board has consistently prohibited pets and not acted arbitrarily, they can enforce a no-pet policy.

Alj Quote

The Administrative Law Judge concludes that Respondent is not required, but may allow pets with the Board’s approval… Petitioner did not establish by a preponderance of the evidence that Respondent has arbitrarily or unreasonably applied CC&R Article 3 § 3(d)(1).

Legal Basis

Board Discretion

Topic Tags

  • Pets
  • Rules Enforcement

Question

Can the HOA charge a 'rental fee' or separate assessment to specific owners for the use or repair of a common area structure?

Short Answer

Not usually. Common area maintenance should be paid from general reserve funds or regular assessments.

Detailed Answer

The HOA cannot arbitrarily charge a 'rental fee' or specific assessment for a common area amenity (like a marquee sign) if the CC&Rs require common area improvements to be funded by the reserve fund or regular assessments.

Alj Quote

The Administrative Law Judge concludes that the marquee is a part of the common area of Xanadu and therefore, the Association was not authorized under CC&R Article 6 § 2(a), to charge a separate assessment or rental fee for the use of the marquee.

Legal Basis

CC&R Article 6 § 2(a)

Topic Tags

  • Assessments
  • Common Areas
  • Financials

Question

Is there a statute of limitations for filing a petition against my HOA with the Arizona Department of Real Estate?

Short Answer

No.

Detailed Answer

The statute of limitations that applies to debts (A.R.S. § 12-548) does not apply to ADRE petitions because they are not actions for debt. The Department itself does not have statute of limitations provisions.

Alj Quote

A.R.S. § 12-548 is inapplicable to the petition filed in this matter because the statute applies to actions for debt evidenced by a contract in writing. The petition does not relate to a debt and furthermore, the Department does not have any statute of limitations provisions.

Legal Basis

A.R.S. § 12-548 (distinguished)

Topic Tags

  • Procedure
  • Statute of Limitations

Question

Can the HOA levy a special assessment for repairs without a vote of the members?

Short Answer

No, not if the CC&Rs require a member vote.

Detailed Answer

If the CC&Rs stipulate that special assessments for capital improvements require the assent of a certain percentage of voters (e.g., 2/3), the HOA cannot impose the cost without holding that vote.

Alj Quote

Furthermore, there was no evidence presented at hearing that the $50 assessment was imposed that complied with CC&R Article 6 § 5.

Legal Basis

CC&R Article 6 § 5

Topic Tags

  • Special Assessments
  • Voting

Question

If I win my hearing against the HOA, can I get my filing fee back?

Short Answer

Yes.

Detailed Answer

The Administrative Law Judge has the authority to order the HOA to reimburse the prevailing party for the filing fee.

Alj Quote

IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $1,000.00, to be paid directly to Petitioner within thirty (30) days of this Order.

Legal Basis

Administrative Order

Topic Tags

  • Remedies
  • Fees

Question

How are conflicts or ambiguities in the CC&Rs interpreted by the judge?

Short Answer

They are construed as a whole to determine the underlying purpose.

Detailed Answer

Restrictive covenants are interpreted by looking at the document as a whole to understand the intent of the parties and the purpose of the restrictions.

Alj Quote

Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.

Legal Basis

Common Law Interpretation

Topic Tags

  • Legal Standards
  • CC&R Interpretation

Case

Docket No
21F-H2121065-REL
Case Title
Brian D. Sopatyk vs. Xanadu Lake Resort Condominium, Inc.
Decision Date
2021-11-01
Alj Name
Velva Moses-Thompson
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Brian D. Sopatyk (petitioner)
    Unit Owner
  • Jacob A. Kubert (petitioner attorney)
    Dessaules Law Group

Respondent Side

  • Penny L. Koepke (respondent attorney)
    Maxwell Morgan PC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • Louis Dettorre (ADRE Commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk/staff)
    Transmitting agent mentioned in distribution list

Gregory L Smith v. Mountain Bridge Community Association

Case Summary

Case ID 21F-H2121037-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-06-11
Administrative Law Judge Adam D. Stone
Outcome The Petitioner prevailed on the claim of violating CC&R Article 11.3.2 (failure to negotiate in good faith) but was denied relief on the claim of violating A.R.S. § 33-1811 (conflict of interest). Petitioner was ordered reimbursed $500.00 for the filing fee.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gregory L. Smith Counsel
Respondent Mountain Bridge Community Association Counsel Nicole Payne, Esq.

Alleged Violations

A.R.S. § 33-1811
CC&R Article 11.3.2

Outcome Summary

The Petitioner prevailed on the claim of violating CC&R Article 11.3.2 (failure to negotiate in good faith) but was denied relief on the claim of violating A.R.S. § 33-1811 (conflict of interest). Petitioner was ordered reimbursed $500.00 for the filing fee.

Why this result: Petitioner failed to prove the A.R.S. § 33-1811 violation because the statute was interpreted by the Tribunal to require the action to involve compensation.

Key Issues & Findings

Conflict of Interest Disclosure

Petitioner alleged the Respondent violated A.R.S. § 33-1811 because the HOA President failed to disclose a conflict of interest during the approval of his own flagpole. The Tribunal found the statute requires the decision to involve compensation, and Petitioner failed to meet the burden of proof.

Orders: Petition denied as to a violation of A.R.S. 33-1811. Tribunal declined to award a civil penalty.

Filing fee: $1,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1811

Failure to Negotiate Claim Resolution in Good Faith

Petitioner claimed Mountain Bridge failed to negotiate a resolution in good faith after he filed a claim notice. Mountain Bridge failed to communicate until approximately 35 days after the claim was noticed. The Tribunal found Respondent failed to negotiate in good faith.

Orders: Petitioner is deemed the prevailing party as to his claim of an Article 11 violation. Respondent must reimburse the $500.00 filing fee within 30 days. Tribunal declined to award a civil penalty.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • CC&R Article 11.3.2

Analytics Highlights

Topics: HOA, Conflict of Interest, Failure to Negotiate, Flagpole, Filing Fee
Additional Citations:

  • A.R.S. § 33-1811
  • 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)
  • 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

21F-H2121037-REL Decision – 887461.pdf

Uploaded 2026-04-24T11:33:55 (121.4 KB)

21F-H2121037-REL Decision – 887461.pdf

Uploaded 2026-01-23T17:36:47 (121.4 KB)

This is a summary of the Administrative Law Judge Decision in the case of *Gregory L. Smith v. Mountain Bridge Community Association*.

Key Facts and Proceedings

Petitioner Gregory L. Smith, a homeowner and member of the Mountain Bridge Community Association (HOA/Respondent), filed a petition alleging the HOA violated its Covenants, Conditions, and Restrictions (CC&R’s) and Arizona statute. The core dispute centered on the HOA’s failure to take enforcement action against Smith’s backyard neighbor—who was also the HOA President (Mr. Riggs)—for installing a flagpole that impacted Smith’s property view. Smith believed the HOA’s Architectural Review Committee (ARC) had an obligation to consider the view from his property when approving the flagpole. The hearings occurred on April 22, 2021, and June 2, 2021.

Main Issues and Arguments

The Tribunal focused on two primary issues after addressing a moot point regarding attorney’s fees:

  1. Violation of A.R.S. § 33-1811 (Conflict of Interest): Smith argued that the HOA violated the statute because the Board President failed to make proper disclosures regarding the flagpole approval, as it was a board decision.
  2. Violation of CC&R Article 11.3.2 (Good Faith Negotiation): Smith argued that the HOA violated the requirement to negotiate in good faith after he filed a formal claim notice on September 8, 2020. The credible evidence showed the HOA or its attorneys failed to communicate with Smith until October 13, 2020, approximately 35 days after the claim notice.

Legal Conclusions and Outcome

The Administrative Law Judge rendered a decision based on whether Smith met his burden of proof by a preponderance of the evidence.

  1. A.R.S. § 33-1811 Claim Denied: The Tribunal found that A.R.S. § 33-1811, concerning board conflicts of interest, applies only when the "contract, decision or other action" involves compensation. Since the decision regarding the flagpole was not found to involve compensation, the Tribunal held that Smith had not sustained his burden of proof regarding the statutory violation.
  2. CC&R Article 11.3.2 Claim Upheld: The Tribunal found that Mountain Bridge failed to negotiate in good faith and violated Article 11.3.2 of the CC&R’s. Although the dispute occurred during the COVID-19 pandemic, the lack of any communication until 35 days post-notice, thereby exceeding the negotiation period, constituted a violation.

Final Decision

The Petitioner’s request regarding the violation of A.R.S. § 33-1811 was denied. Petitioner was deemed the prevailing party solely on the claim that Mountain Bridge violated CC&R Article 11 (failure to negotiate in good faith). As the prevailing party, the Petitioner is entitled to the reimbursement of his $500.00 filing fee from the Respondent within 30 days. The Tribunal declined to award a civil penalty.

Questions

Question

Does a board member violate conflict of interest laws by voting on their own architectural request if no money is exchanged?

Short Answer

Likely not. The ALJ ruled that the conflict of interest statute (A.R.S. § 33-1811) applies specifically to decisions involving compensation.

Detailed Answer

The ALJ interpreted A.R.S. § 33-1811 narrowly. While acknowledging that abstaining from voting on one's own request is 'best practice,' the Judge determined that the phrase 'contract, decision or other action for compensation' implies that the decision must involve compensation to trigger the statutory violation. Since the architectural approval was not for compensation, the statute was not violated.

Alj Quote

However, the word “other” would indicate that the contract or decision would involve compensation. … Therefore, the Tribunal finds that Mr. Smith has not sustained his burden in demonstrating that Mountain Bridge violated A.R.S. § 33-1811.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • Conflict of Interest
  • Board Conduct
  • Architectural Review

Question

If the CC&Rs require the HOA to negotiate a dispute within a certain time, can they simply ignore it?

Short Answer

No. Ignoring a request for negotiation beyond the mandated timeframe can be considered a violation of the duty to negotiate in good faith.

Detailed Answer

In this case, the CC&Rs required the parties to make a reasonable effort to meet and confer. The HOA failed to communicate with the homeowner until 35 days after the claim was noticed (past the 30-day negotiation period). The ALJ found this lack of communication to be a violation of the specific CC&R article requiring good faith negotiation.

Alj Quote

The credible evidence presented demonstrated that Mountain Bridge, or its attorneys, did not communicate with Mr. Smith until October 13, 2020, approximately 35 days after the claim was noticed. … Therefore, the Tribunal finds that Mountain Bridge failed to negotiate in good faith and violated Article 11.3.2 of the CC&R’s.

Legal Basis

CC&R Article 11.3.2

Topic Tags

  • Dispute Resolution
  • Good Faith
  • HOA Obligations

Question

Can the HOA use the COVID-19 pandemic as a valid excuse for failing to communicate with me?

Short Answer

Not if they fail to send any updates. The HOA must at least inform the homeowner of potential delays.

Detailed Answer

The ALJ rejected the HOA's implicit defense that the pandemic justified the delay in communication. The ruling stated that even if the pandemic caused issues, the HOA had an obligation to at least inform the homeowner that delays were occurring. Total silence was not justified.

Alj Quote

While this dispute occurred during the COVID-19 pandemic, certainly communications could have been sent to Mr. Smith informing him there may be some delays in communication. However, there were none, and thus no valid justification for the Board not entering into negotiations with the Smiths.

Legal Basis

Administrative Discretion / Good Faith

Topic Tags

  • Communication
  • Delays
  • Good Faith

Question

Who is responsible for proving that the HOA violated the rules during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred. The HOA does not have to disprove the claim initially; the burden starts with the homeowner.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 3.1 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Procedure
  • Burden of Proof
  • Evidence

Question

Can I claim the HOA violated a definition in the CC&Rs, such as 'Visible from Neighboring Property'?

Short Answer

No. You cannot violate a definition; you can only violate the rules that use the definition.

Detailed Answer

The homeowner argued the HOA violated the definition of 'Visible from Neighboring Property.' The ALJ ruled that a definition is descriptive and cannot be violated in and of itself. Violations must be tied to specific covenants or restrictions.

Alj Quote

Further, because “Visible from Neighboring Property” as mentioned in Article 1 is a definition, it is impossible for Mountain Bridge to violate the same.

Legal Basis

Contract Interpretation

Topic Tags

  • CC&R Interpretation
  • Definitions
  • Legal Standards

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes, if you prevail on a claim, the ALJ can order the HOA to reimburse your filing fee.

Detailed Answer

The ALJ deemed the homeowner the prevailing party regarding the 'failure to negotiate' claim (even though other claims were denied) and ordered the HOA to reimburse the $500.00 filing fee within 30 days.

Alj Quote

Thus, Petitioner is entitled to his filing fee of $500.00 and Respondent must reimburse the same with 30 days.

Legal Basis

Administrative Remedy

Topic Tags

  • Remedies
  • Fees
  • Reimbursement

Case

Docket No
21F-H2121037-REL
Case Title
Gregory L. Smith vs. Mountain Bridge Community Association
Decision Date
2021-06-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Questions

Question

Does a board member violate conflict of interest laws by voting on their own architectural request if no money is exchanged?

Short Answer

Likely not. The ALJ ruled that the conflict of interest statute (A.R.S. § 33-1811) applies specifically to decisions involving compensation.

Detailed Answer

The ALJ interpreted A.R.S. § 33-1811 narrowly. While acknowledging that abstaining from voting on one's own request is 'best practice,' the Judge determined that the phrase 'contract, decision or other action for compensation' implies that the decision must involve compensation to trigger the statutory violation. Since the architectural approval was not for compensation, the statute was not violated.

Alj Quote

However, the word “other” would indicate that the contract or decision would involve compensation. … Therefore, the Tribunal finds that Mr. Smith has not sustained his burden in demonstrating that Mountain Bridge violated A.R.S. § 33-1811.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • Conflict of Interest
  • Board Conduct
  • Architectural Review

Question

If the CC&Rs require the HOA to negotiate a dispute within a certain time, can they simply ignore it?

Short Answer

No. Ignoring a request for negotiation beyond the mandated timeframe can be considered a violation of the duty to negotiate in good faith.

Detailed Answer

In this case, the CC&Rs required the parties to make a reasonable effort to meet and confer. The HOA failed to communicate with the homeowner until 35 days after the claim was noticed (past the 30-day negotiation period). The ALJ found this lack of communication to be a violation of the specific CC&R article requiring good faith negotiation.

Alj Quote

The credible evidence presented demonstrated that Mountain Bridge, or its attorneys, did not communicate with Mr. Smith until October 13, 2020, approximately 35 days after the claim was noticed. … Therefore, the Tribunal finds that Mountain Bridge failed to negotiate in good faith and violated Article 11.3.2 of the CC&R’s.

Legal Basis

CC&R Article 11.3.2

Topic Tags

  • Dispute Resolution
  • Good Faith
  • HOA Obligations

Question

Can the HOA use the COVID-19 pandemic as a valid excuse for failing to communicate with me?

Short Answer

Not if they fail to send any updates. The HOA must at least inform the homeowner of potential delays.

Detailed Answer

The ALJ rejected the HOA's implicit defense that the pandemic justified the delay in communication. The ruling stated that even if the pandemic caused issues, the HOA had an obligation to at least inform the homeowner that delays were occurring. Total silence was not justified.

Alj Quote

While this dispute occurred during the COVID-19 pandemic, certainly communications could have been sent to Mr. Smith informing him there may be some delays in communication. However, there were none, and thus no valid justification for the Board not entering into negotiations with the Smiths.

Legal Basis

Administrative Discretion / Good Faith

Topic Tags

  • Communication
  • Delays
  • Good Faith

Question

Who is responsible for proving that the HOA violated the rules during a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

The homeowner must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred. The HOA does not have to disprove the claim initially; the burden starts with the homeowner.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent violated CC&R § 3.1 by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Procedure
  • Burden of Proof
  • Evidence

Question

Can I claim the HOA violated a definition in the CC&Rs, such as 'Visible from Neighboring Property'?

Short Answer

No. You cannot violate a definition; you can only violate the rules that use the definition.

Detailed Answer

The homeowner argued the HOA violated the definition of 'Visible from Neighboring Property.' The ALJ ruled that a definition is descriptive and cannot be violated in and of itself. Violations must be tied to specific covenants or restrictions.

Alj Quote

Further, because “Visible from Neighboring Property” as mentioned in Article 1 is a definition, it is impossible for Mountain Bridge to violate the same.

Legal Basis

Contract Interpretation

Topic Tags

  • CC&R Interpretation
  • Definitions
  • Legal Standards

Question

If I win my hearing against the HOA, will I get my filing fee back?

Short Answer

Yes, if you prevail on a claim, the ALJ can order the HOA to reimburse your filing fee.

Detailed Answer

The ALJ deemed the homeowner the prevailing party regarding the 'failure to negotiate' claim (even though other claims were denied) and ordered the HOA to reimburse the $500.00 filing fee within 30 days.

Alj Quote

Thus, Petitioner is entitled to his filing fee of $500.00 and Respondent must reimburse the same with 30 days.

Legal Basis

Administrative Remedy

Topic Tags

  • Remedies
  • Fees
  • Reimbursement

Case

Docket No
21F-H2121037-REL
Case Title
Gregory L. Smith vs. Mountain Bridge Community Association
Decision Date
2021-06-11
Alj Name
Adam D. Stone
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Gregory L. Smith (petitioner)
    Appeared on his own behalf
  • Christa Smith (witness)
    Called by Petitioner

Respondent Side

  • Nicole Payne (HOA attorney)
    Carpenter Hazlewood
    Appeared on behalf of Respondent
  • Amber Martin (community manager)
    Mountain Bridge Community Association
    Also testified as a witness
  • Jim Rayment (ARC Chair)
    Mountain Bridge Community Association
    Approved the flagpole; also testified as a witness
  • Mr. Riggs (HOA President)
    Mountain Bridge Community Association
    Petitioner's backyard neighbor

Neutral Parties

  • Adam D. Stone (ALJ)
    OAH
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of decision transmission

Charles P Mandela vs. Blue Ridge Estates Homeowners’ Association

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

Case Summary

Case ID 20F-H2020042-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-04-27
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles P Mandela Counsel
Respondent Blue Ridge Estates Homeowners' Association Counsel Nicholas Nogami, Esq.

Alleged Violations

CC&R Article X; CC&R Section 10.3

Outcome Summary

The Administrative Law Judge, following a rehearing, affirmed the original decision, concluding that the Petitioner failed to sustain the burden of proof that the Respondent HOA violated CC&R Article X regarding the denial of an architectural modification request for a patio shade. The Respondent was found to have acted in compliance with the community documents, and the appeal was dismissed.

Why this result: Petitioner failed to meet the burden of proof to establish a violation of the CC&R's and failed to follow the procedural requirements necessary to appeal a deemed disapproval under CC&R Section 10.3.

Key Issues & Findings

Denial of request for patio shade structure and alleged violation of response timeline

Petitioner challenged the HOA's denial of his application for a patio shade, arguing the denial was improper because the shade would be attached (not a separate structure) and that the HOA missed the 30-day response deadline. The ALJ determined that the HOA's denial based on the 'only one structure other than the residence' rule (since a shed already existed) complied with the non-exhaustive Architectural Committee Standards (Article X, 10.2). Regarding the delayed response, the ALJ noted that Section 10.3 mandated that a late response results in the request being 'deemed disapproved,' and the Petitioner failed to subsequently request the required appeal meeting.

Orders: The Administrative Law Judge concluded that Petitioner failed to sustain the burden of proof that the Respondent violated Article X of the CC&R’s. The Respondent was declared the prevailing party, and the Petitioner's appeal (rehearing) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(A)
  • CC&R Article X
  • CC&R Section 10.3

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Denial, Rehearing, Burden of Proof, Deemed Disapproved
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(A)

Video Overview

Audio Overview

Decision Documents

20F-H2020042-REL-RHG Decision – 876009.pdf

Uploaded 2026-01-23T17:31:30 (118.9 KB)

20F-H2020042-REL-RHG Decision – ../20F-H2020042-REL/850032.pdf

Uploaded 2026-01-23T17:31:33 (113.4 KB)

Briefing on Mandela v. Blue Ridge Estates Homeowners’ Association

Executive Summary

This document synthesizes the findings from two administrative law judge decisions concerning a dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association (“Blue Ridge”). The core issue was Blue Ridge’s denial of Mr. Mandela’s request to build a patio shade structure.

In the initial hearing on January 13, 2021, Mr. Mandela argued the denial was erroneous because the shade would be attached to his house, not a separate structure, and that similar structures existed in the community. Blue Ridge defended its decision based on Article X of its Covenants, Conditions, and Restrictions (CC&Rs), which limits properties to one structure besides the main residence. The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, finding that Blue Ridge acted within the authority granted by its CC&Rs, as its architectural standards were not exhaustive and it provided a reasonably detailed written reason for the denial.

Following this decision, Mr. Mandela was granted a rehearing, which took place on April 16, 2021. During this second hearing, he introduced a new argument that Blue Ridge had violated Article 10.3 of the CC&Rs by failing to respond to his request within the stipulated 30-day timeframe. However, the ALJ found that the same article specifies that a failure to respond results in the request being “deemed disapproved.” The ALJ concluded that Mr. Mandela had failed to follow the subsequent appeal procedures outlined in the CC&Rs and again failed to meet his burden of proof. Consequently, the appeal was dismissed, and Blue Ridge was declared the prevailing party. Notably, during the rehearing, Mr. Mandela testified that his request for the patio shade had since been approved by the Blue Ridge board.

Initial Hearing and Decision (Case No. 20F-H2020042-REL)

The first evidentiary hearing was held on January 13, 2021, before Administrative Law Judge Adam D. Stone to address Mr. Mandela’s petition alleging Blue Ridge violated its CC&Rs.

The Core Dispute

Petitioner’s Request: On August 28, 2019, Charles P. Mandela submitted a request to build a “patio shade less than 200 sq. feet,” described as a four-post structure he intended to attach to the east wall of his residence.

Respondent’s Denial: On October 25, 2019, Blue Ridge denied the request, stating: “Only one structure other than the residence may be placed on the property. The site plan that was given for review shows the residence and also a shed on property already existing, this would be the allowable limit per the Architectural Standards.”

Arguments Presented

Petitioner (Charles P. Mandela):

◦ Argued passionately that the denial was erroneous because the patio shade was to be attached to the house, not a separate, stand-alone structure.

◦ Presented photographs of other properties within Blue Ridge Estates that had multiple structures and stand-alone patio shades similar to his proposal.

Respondent (Blue Ridge Estates HOA):

◦ Contended it properly followed Article X of the CC&Rs in its denial.

◦ At the hearing, Blue Ridge pointed to Article III of the CC&Rs as justification, classifying the proposed shade as an additional structure on the property.

Judge’s Findings and Conclusions

The Administrative Law Judge (ALJ) denied Mr. Mandela’s petition, concluding he had not established by a preponderance of the evidence that Blue Ridge violated Article X of the CC&Rs.

Interpretation of CC&R Section 10.2: The judge found that the architectural standards listed in this section were explicitly not exhaustive. The text states standards “may include, without limitation, provisions regarding” aspects like size, design, and placement. This allowed the architectural committee to deny the request based on the “one additional structure” rule, even if not explicitly listed.

Compliance with CC&R Section 10.3: This section requires the committee to provide “reasonably detailed written reasons for such disapproval.” The judge found that the denial email of October 25, 2019, fulfilled this requirement. The email did not need to cite a specific CC&R section, only to provide an explanation.

On Precedent and Fairness: The ALJ acknowledged Mr. Mandela’s evidence of similar structures on other properties. However, the decision noted: “While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.”

Final Ruling: The petition was denied in a decision dated January 29, 2021.

Rehearing and Final Decision (Case No. 20F-H2020042-REL-RHG)

Mr. Mandela filed for a rehearing on February 5, 2021, on the grounds that the decision was arbitrary, capricious, or not supported by evidence. The Arizona Department of Real Estate Commissioner granted the request, and a new hearing was held on April 16, 2021.

New Testimony and Arguments

Petitioner (Charles P. Mandela):

Subsequent Approval: Testified that since the January 29, 2021 decision, his request for the patio shade had been approved by the Blue Ridge board.

Procedural Violation: Argued that Blue Ridge violated CC&R Section 10.3 by failing to respond to his August 28, 2019, request within the required 30-day period, as the denial was not issued until October 25, 2019.

History of Denials: Stated he had made several previous requests in 2018 and 2019 that were either denied or ignored.

Discrimination: Claimed he had been discriminated against due to the previous denials.

Respondent (Blue Ridge Estates HOA):

Interpretation of Section 10.3: Argued that while the section may be “confusingly drafted,” it stipulates that if the committee fails to respond within 30 days, the request is “deemed disapproved.” Therefore, the board acted within its authority.

Failure to Appeal: Contended that Mr. Mandela failed to follow the proper appeal procedure outlined in the CC&Rs, as he never specifically requested a meeting to discuss the denial.

Judge’s Final Findings and Conclusions

The ALJ affirmed the original decision, finding for the Respondent as the prevailing party and dismissing Mr. Mandela’s appeal.

Scope of Rehearing: The judge determined that the rehearing was limited to the August 28, 2019, request and its subsequent denial, as that was the sole focus of the original petition. Mr. Mandela’s arguments about prior denials were not considered new evidence relevant to the specific violation alleged.

Interpretation of the 30-Day Rule: The ALJ sided with the HOA’s interpretation of Section 10.3. While acknowledging that Blue Ridge took more than thirty days to issue a written denial, the judge ruled that the CC&R’s provision for a “deemed disapproved” status meant the request was properly denied under the rules.

Petitioner’s Failure to Follow Procedure: The judge noted that Mr. Mandela admitted he did not formally request a meeting with the Architectural Committee after the denial, which was the required next step in the appeal process under Section 10.3.

Final Ruling: The final decision, dated April 27, 2021, concluded that Mr. Mandela failed to sustain his burden of proof. The HOA was found to have acted in compliance with the CC&Rs, and the appeal was dismissed. This order was declared binding on the parties.

Timeline of Key Events

August 28, 2019

Charles Mandela submits his request to build a patio shade.

October 25, 2019

Blue Ridge HOA denies the request via email, citing the one-additional-structure limit.

January 13, 2020

Mandela files a petition with the Arizona Department of Real Estate.

January 13, 2021

The first evidentiary hearing is held before the Office of Administrative Hearings.

January 29, 2021

The Administrative Law Judge (ALJ) issues a decision denying Mandela’s petition.

February 5, 2021

Mandela files a request for a rehearing.

March 15, 2021

The Commissioner of the Department of Real Estate grants the rehearing request.

April 16, 2021

The rehearing is conducted.

April 27, 2021

The ALJ issues a final decision, finding for the HOA and dismissing Mandela’s appeal.

Central CC&R Provision: Article X, Section 10.3

The most heavily debated provision was Section 10.3 of the Blue Ridge Estates CC&Rs, which outlines the procedure for architectural requests. Its language was central to the outcome of the rehearing.

Key text from Section 10.3:

“The Architectural Committee shall have thirty (30) days after receipt of such plans, specifications, and elevations to approve or disapprove of the proposed construction… In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved and the Owner can then request a meeting with the Architectural Committee to discuss the reasons for such disapproval…”

This clause was interpreted by the ALJ to mean that the HOA’s failure to provide a written response within 30 days automatically constituted a denial, shifting the burden to the homeowner to request a follow-up meeting, a step Mr. Mandela did not take.

Study Guide: Mandela v. Blue Ridge Estates Homeowners’ Association

This study guide provides a comprehensive review of the administrative legal dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners’ Association, as detailed in the Administrative Law Judge Decisions from January 29, 2021, and April 27, 2021. The case centers on the denial of an architectural request and the interpretation of the association’s governing documents (CC&Rs).

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Quiz: Key Facts and Arguments

Answer the following questions in 2-3 sentences each, based on the provided legal decisions.

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

2. What specific structure did Charles P. Mandela request approval to build on August 28, 2019?

3. What was the initial reason given by the Blue Ridge Estates HOA for denying Mr. Mandela’s request on October 25, 2019?

4. What was Mr. Mandela’s central argument during the first hearing on January 13, 2021?

5. According to the decision from the first hearing, why did the Administrative Law Judge rule that the HOA’s denial was in compliance with Section 10.2 of the CC&Rs?

6. On what grounds did Mr. Mandela file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 5, 2021?

7. During the rehearing, what new argument did Mr. Mandela raise concerning the timeline of the HOA’s denial of his August 28, 2019 request?

8. How did the HOA’s legal counsel counter Mr. Mandela’s argument regarding the 30-day response time outlined in Section 10.3?

9. What procedural step, outlined in Section 10.3, did Mr. Mandela admit he failed to take after his request was deemed denied?

10. What was the final outcome of the rehearing on April 16, 2021, and what was the judge’s conclusion regarding the HOA’s actions?

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Answer Key

1. The primary parties were Petitioner Charles P. Mandela, a homeowner, and Respondent Blue Ridge Estates Homeowners’ Association of Coconino County. Mr. Mandela filed the petition against the HOA after it denied his request to build a patio shade.

2. On August 28, 2019, Mr. Mandela requested approval to build a “patio shade less than 200 sq. feet.” The structure was a four-post shade that he intended to attach to the east side wall of his residence.

3. The HOA denied the request based on Architectural Committee Standards Article X. The denial stated that only one structure other than the residence may be placed on the property, and Mr. Mandela already had a residence and a shed.

4. Mr. Mandela’s central argument was that the denial was erroneous because the patio shade was not a separate stand-alone structure. He planned to attach it to his house, and he presented photographs of other properties with similar structures.

5. The judge ruled the denial complied with Section 10.2 because the list of standards the Architectural Committee could enforce was “not an exhaustive one.” This meant the committee could properly deny the request based on the one-structure limit, even if it wasn’t explicitly enumerated.

6. Mr. Mandela requested a rehearing on the grounds that the findings of fact were arbitrary, capricious, or an abuse of discretion. He also claimed the decision was not supported by the evidence or was contrary to law.

7. During the rehearing, Mr. Mandela argued that the Board violated Section 10.3 of the CC&Rs. He contended that since he made his request on August 28, 2019, and the Board did not respond until October 25, 2019, it had failed to provide a written response within the required 30-day period.

8. The HOA’s counsel argued that while Section 10.3 may be “confusingly drafted,” it specifies that if the committee fails to approve or disapprove within the 30-day period, the request is “deemed disapproved.” Therefore, the Board was within its authority.

9. Mr. Mandela admitted that he did not formally request a meeting with the Architectural Committee to discuss the reasons for the disapproval. This is the procedural step required by Section 10.3 after a request is deemed denied.

10. The final outcome was that the petition was dismissed, and the Respondent (HOA) was declared the prevailing party. The judge concluded that the HOA had not violated the CC&Rs and had acted in compliance with its governing documents.

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Essay Questions for Further Study

The following questions are designed to promote a deeper analysis of the case. Formulate a comprehensive response to each, citing specific details from the legal decisions.

1. Analyze the interpretation of CC&R Section 10.3, specifically the “deemed disapproved” clause. Discuss how this clause functioned as a key legal defense for the HOA and ultimately shaped the outcome of the rehearing.

2. The legal standard in this case was “a preponderance of the evidence.” Define this standard as described in the legal text and evaluate the evidence Mr. Mandela presented in both hearings. Why did the Administrative Law Judge conclude that Mr. Mandela failed to meet his burden of proof?

3. Compare and contrast the arguments presented by the Petitioner and Respondent in the initial hearing (January 13, 2021) versus the rehearing (April 16, 2021). How did the focus of the legal arguments shift between the two proceedings?

4. Examine the authority and jurisdiction of the Architectural Committee as outlined in CC&R Section 10.2. Discuss the significance of the phrase “Such standards and procedures may include, without limitation, provisions regarding…” in the judge’s initial decision.

5. Trace the procedural history of this case, from Mr. Mandela’s initial request in August 2019 to the final order in April 2021. Identify at least four key procedural milestones and explain their significance to the case’s progression and ultimate resolution.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Adam D. Stone, who presides over hearings at the Office of Administrative Hearings and makes decisions on petitions concerning disputes regulated by state agencies.

Architectural Committee

A body within the Blue Ridge Estates HOA established by Article X of the CC&Rs, with jurisdiction over all original construction and any modifications, additions, or alterations to the exterior of homes or properties.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations and the associations themselves in Arizona.

Burden of Proof

The obligation of a party in a legal proceeding to produce evidence that proves the facts it claims are true. In this case, the Petitioner (Mr. Mandela) bore the burden of proof.

An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community like Blue Ridge Estates. This case centered on the interpretation of Article X of the Blue Ridge CC&Rs.

Homeowners’ Association (HOA)

The governing organization for a planned community. In this case, the Respondent was the Blue Ridge Estates Homeowners Association of Coconino County.

Motion to Dismiss

A formal request filed by a party asking for a lawsuit or petition to be dismissed. The Blue Ridge HOA filed a Motion to Dismiss, which was denied on October 7, 2020, allowing the case to proceed.

Office of Administrative Hearings

An independent state agency in Arizona where petitions related to disputes with HOAs are sent for an evidentiary hearing before an Administrative Law Judge.

Petitioner

The party who files a petition initiating a legal action. In this case, Charles P. Mandela was the Petitioner.

Preponderance of the Evidence

The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.

Rehearing

A second hearing granted to review a legal decision. Mr. Mandela was granted a rehearing after the initial decision, based on his claim that the findings were arbitrary, capricious, or not supported by evidence.

Respondent

The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowners’ Association was the Respondent.

Tribunal

A term used in the documents to refer to the judicial body hearing the case, specifically the Office of Administrative Hearings and the presiding Administrative Law Judge.

He Fought the HOA Over a Patio and Lost. Here Are 5 Shocking Lessons Every Homeowner Needs to Learn.

Introduction: The Perils of a Simple Home Improvement Project

For any homeowner, the excitement of a new project—a deck, a fence, or a simple patio shade—can quickly turn to frustration when it collides with the dense rulebook of a Homeowners’ Association (HOA). What seems like a straightforward improvement can become a complex battle of bylaws and procedures.

This was the reality for Charles P. Mandela, a homeowner in the Blue Ridge Estates community. His plan to build a simple patio shade was denied by his HOA, sparking a legal challenge that went before an Administrative Law Judge. While Mr. Mandela ultimately lost his case on its legal merits, the details of his fight offer a masterclass in the surprising and often counter-intuitive world of HOA governance. This article distills the most shocking lessons from his case, providing critical insights for any homeowner living under an HOA.

——————————————————————————–

1. The “Deemed Disapproved” Clause: How an HOA’s Silence Becomes a Legal “No”

Mr. Mandela submitted his request to build a patio shade on August 28, 2019. He argued that the HOA, Blue Ridge Estates, violated its own rules, which required a response within 30 days. The HOA didn’t send its formal denial until October 25, 2019, well past the deadline. On the surface, it seemed like a clear procedural violation by the HOA.

However, a bizarre and “unartfully drafted” clause hidden in the HOA’s governing documents (CC&Rs) turned this logic on its head. The rule stated:

In the event the Architectural Committee fails either to approve or disapprove the proposed construction… within said thirty (30) day period, such proposed construction… shall be deemed disapproved…

Contrary to common sense, the rule meant that the HOA’s failure to respond on time resulted in an automatic denial, not a pending approval. The Administrative Law Judge was bound by this text, concluding that because the 30-day period had passed without a formal approval, the request was “properly deemed denied.”

2. The “My Neighbor Has One” Argument Is Weaker Than You Think

To support his case, Mr. Mandela presented photographs showing that “similar shades exist on other properties with additional structures.” He argued that the HOA was engaging in selective enforcement by denying his project while having approved others like it. This is one of the most frequent arguments homeowners make when they feel singled out by their HOA board.

The judge’s conclusion was a stunning reality check. The legal decision stated:

While those properties may have had their shades approved by different members of the Blue Ridge Architectural Committee that does not follow that Mr. Mandela’s request was improperly denied under Article X.

The legal reasoning here is crucial for homeowners to understand. Architectural committees are not static; members change, and so can their interpretation of aesthetic standards. Each application is legally considered a distinct request, evaluated under the rules in place at that moment. A previous committee’s approval—which may have even been a mistake or a variance granted under different circumstances—does not create a binding legal precedent that forces the current committee to repeat it.

3. Procedure is Everything: A Missed Step Can Cost You the Case

The HOA’s rules contained a specific process for appealing a denial. After a project is “deemed disapproved” because the 30-day clock ran out, the homeowner must then formally request a meeting with the committee to discuss the denial.

The judge found that Mr. Mandela had failed to take this critical next step. This procedural misstep, however small it might seem, became a key factor in the case against him. The decision hinged on this procedural failure, stating:

Further, Petitioner admitted that in his several email responses that he did not formally request a meeting with the Architectural Committee, thus he failed to follow the procedures in Section 10.3.

This highlights a crucial lesson: meticulously follow every single procedural step outlined in your HOA’s documents. Failure to do so, such as not using the correct language to request a meeting, can be used to dismiss your claim, regardless of its other merits.

4. “Unartfully Drafted” Rules Can Still Be Legally Binding

Even the Administrative Law Judge acknowledged the poor quality of the HOA’s rulebook. In the decision, the judge offered a candid assessment of the rule regarding the 30-day response time, stating, “Admittedly this section is unartfully drafted…”

Despite this observation, the rule was enforced exactly as written. The judge was bound by the text, however confusing, and concluded that “from the evidence presented, the request was properly deemed denied.”

This is perhaps the most sobering lesson. Homeowners often assume that a rule that is confusing or seems illogical won’t hold up under scrutiny. This case proves that the literal text of the governing documents possesses immense power. What a rule literally says is far more important than what one might assume it should mean.

5. The Final Twist: He Lost the Case But Got His Patio Anyway

After the initial decision was made against him, Mr. Mandela requested a rehearing. During this second hearing, a surprising fact emerged. Mr. Mandela testified that “since the decision on January 29, 2021, his request for the patio shade had been approved by the Board.”

This outcome highlights a crucial dynamic: while Mr. Mandela lost the legal argument based on procedural history, his persistent engagement in the process—including filing a formal appeal—likely created enough administrative and community pressure to compel the Board to find a practical, non-legal solution. It’s a powerful reminder that a legal loss on a technicality does not always foreclose a real-world victory.

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Conclusion: Do You Really Know Your HOA’s Rules?

The case of Charles Mandela serves as a powerful cautionary tale. It reveals that HOA disputes are rarely won on appeals to fairness or common sense. Instead, they are won or lost in the fine print of the governing documents—documents that can contain counter-intuitive clauses, procedural traps, and “unartfully drafted” rules that are nonetheless legally binding.

A homeowner’s best defense is not passion or conviction, but a deep and thorough understanding of the specific rules and procedures they agreed to live by. This case forces every homeowner to ask: Are you prepared to navigate the literal text of your community’s rules, where silence can mean “no” and a neighbor’s precedent is no precedent at all?

Case Participants

Petitioner Side

  • Charles P Mandela (petitioner)

Respondent Side

  • Nicholas Nogami (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

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

Carlos J Sanchez & Marinda K Minch, vs. Tempe Villages Homeowners

Case Summary

Case ID 21F-H2121033-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-03-09
Administrative Law Judge Sondra J. Vanella
Outcome The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Carlos J. Sanchez & Marinda K. Minch Counsel
Respondent Tempe Villages Homeowners Association, Inc. Counsel Ashley Moscarello

Alleged Violations

Bylaws Article 4 Section 1

Outcome Summary

The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.

Why this result: Petitioners failed to meet the burden of proof to establish the violation by a preponderance of the evidence. The Bylaws do not contain a provision providing a timeframe in which a vacancy on the Board must be filled.

Key Issues & Findings

Violation of Bylaws regarding Board of Directors composition and appointment

Petitioners alleged the HOA violated Bylaws Article 4 Section 1 by leaving a Board seat open following a resignation (August 2020) and not filling it until November 2020. The ALJ found the Bylaws (Sections 1, 2, and 3) did not mandate a timeframe for filling a vacancy, and the HOA followed procedures for appointment.

Orders: Petitioners’ 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA Governance, Board of Directors, Bylaws, Board Vacancy
Additional Citations:

  • 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)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • 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

21F-H2121033-REL Decision – 862059.pdf

Uploaded 2026-04-24T11:33:33 (132.3 KB)

21F-H2121033-REL Decision – 862059.pdf

Uploaded 2026-01-23T17:36:41 (132.3 KB)

This summary addresses the legal case hearing concerning the dispute between Carlos J. Sanchez & Marinda K. Minch (Petitioners) and Tempe Villages Homeowners Association, Inc. (Respondent). The hearing was held before an Administrative Law Judge (ALJ) on March 2, 2021.

Key Facts and Main Issues

Petitioners filed a Homeowners Association (HOA) Dispute Process Petition on or about January 11, 2021, alleging the Respondent violated community Bylaws, specifically Article 4 Section 1.

The central issue was whether the HOA improperly maintained an unfilled seat on its Board of Directors. Petitioners asserted that the HOA violated the Bylaws by leaving a Board seat vacant for a period of time and attempted to prevent Petitioner Marinda Minch from joining the Board.

Respondent's defense focused on the interpretation of Article IV of the Bylaws. The Board's number is set at seven directors. A director resigned in August 2020, leaving six members. The subsequent annual meeting in October 2020 filled two regularly expiring seats via election, in which Petitioners were candidates but were not elected.

The August 2020 vacancy was subject to Article IV, Section 3 of the Bylaws, which states that in the event of resignation, the successor "shall be selected by the remaining members of the Board" to serve the unexpired term.

Hearing Proceedings and Arguments

Petitioners' Argument: Petitioner Marinda Minch testified that the Board delayed filling the vacancy (until November 2020) because of personal dislike for her, and she had petitioned the Board three times for appointment.

Respondent's Argument: Respondent’s President, Bradley Hudson, testified that the Board decided the newly elected Board should fill the vacancy. At the November 11, 2020, virtual meeting, a motion to appoint Ms. Minch failed (2-4 vote), and the Board subsequently appointed another individual (4-2 vote), thereby filling all seven seats. Crucially, the Respondent argued, and the ALJ noted, that the Bylaws do not contain a timeframe within which a vacancy due to resignation must be filled.

Legal Points and Outcome

Petitioners bore the burden of proof to establish the alleged violation by a preponderance of the evidence.

The ALJ determined that Article IV Sections 1, 2, and 3 must be read collectively. The process used by the Board to fill the August vacancy—selection by the remaining Board members—complied with Article IV, Section 3. Because the Bylaws did not mandate an immediate appointment timeframe, the Respondent was found to have acted within the scope of the community documents.

Final Decision: The Petitioners failed to sustain their burden to establish a violation of the Bylaws. IT IS ORDERED that Petitioners’ Petition is dismissed.

Questions

Question

If a Board member resigns, does the HOA have to hold an election to fill the seat?

Short Answer

Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.

Detailed Answer

In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.

Alj Quote

In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Board Vacancies
  • Elections
  • Bylaws

Question

Is there a specific deadline for the Board to fill a vacant seat after a resignation?

Short Answer

Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.

Detailed Answer

The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.

Alj Quote

The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Vacancies
  • Timelines
  • Bylaws

Question

Can the Community Manager appoint or remove Board members?

Short Answer

No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.

Detailed Answer

The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.

Alj Quote

Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.

Legal Basis

Testimony / Findings of Fact

Topic Tags

  • Community Manager
  • Authority
  • Board Composition

Question

What is the 'burden of proof' for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner (Petitioner) must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?

Short Answer

Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.

Detailed Answer

The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.

Alj Quote

Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.

Legal Basis

Findings of Fact / Bylaws

Topic Tags

  • Elections
  • Board Terms
  • Voting

Question

Does personal dislike or bias by the Board constitute a violation of the Bylaws?

Short Answer

Not on its own. The homeowner must prove a specific violation of the governing documents.

Detailed Answer

Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.

Alj Quote

Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.

Legal Basis

Conclusions of Law

Topic Tags

  • Discrimination/Bias
  • Enforcement
  • Board Conduct

Case

Docket No
21F-H2121033-REL
Case Title
Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
Decision Date
2021-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Questions

Question

If a Board member resigns, does the HOA have to hold an election to fill the seat?

Short Answer

Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.

Detailed Answer

In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.

Alj Quote

In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

Legal Basis

Bylaws Article IV, Section 3

Topic Tags

  • Board Vacancies
  • Elections
  • Bylaws

Question

Is there a specific deadline for the Board to fill a vacant seat after a resignation?

Short Answer

Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.

Detailed Answer

The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.

Alj Quote

The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.

Legal Basis

Bylaws Interpretation

Topic Tags

  • Board Vacancies
  • Timelines
  • Bylaws

Question

Can the Community Manager appoint or remove Board members?

Short Answer

No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.

Detailed Answer

The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.

Alj Quote

Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.

Legal Basis

Testimony / Findings of Fact

Topic Tags

  • Community Manager
  • Authority
  • Board Composition

Question

What is the 'burden of proof' for a homeowner suing their HOA in an administrative hearing?

Short Answer

The homeowner (Petitioner) must prove the violation by a 'preponderance of the evidence'.

Detailed Answer

This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.

Alj Quote

Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Evidence

Question

Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?

Short Answer

Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.

Detailed Answer

The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.

Alj Quote

Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.

Legal Basis

Findings of Fact / Bylaws

Topic Tags

  • Elections
  • Board Terms
  • Voting

Question

Does personal dislike or bias by the Board constitute a violation of the Bylaws?

Short Answer

Not on its own. The homeowner must prove a specific violation of the governing documents.

Detailed Answer

Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.

Alj Quote

Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.

Legal Basis

Conclusions of Law

Topic Tags

  • Discrimination/Bias
  • Enforcement
  • Board Conduct

Case

Docket No
21F-H2121033-REL
Case Title
Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
Decision Date
2021-03-09
Alj Name
Sondra J. Vanella
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Carlos J. Sanchez (petitioner)
    Candidate for Board election
  • Marinda K. Minch (petitioner)
    Candidate for Board election; considered for vacancy appointment; testified

Respondent Side

  • Ashley Moscarello (HOA attorney)
    Goodman Lawgroup
  • Bradley Hudson (board member)
    Tempe Villages Homeowners Association, Inc. Board
    President of the Board; testified as witness
  • Shawn Nurse (community manager)
    Tempe Villages Homeowners Association, Inc.
    Testified as witness; received ballots for election
  • William Skanadore (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Incumbent candidate; elected
  • Will Terrick (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Incumbent candidate; elected
  • Wendelyn Neal (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Made motion to appoint Marinda Minch
  • Joel Krick (board member)
    Tempe Villages Homeowners Association, Inc. Board
  • Kathy Hudson (board member)
    Tempe Villages Homeowners Association, Inc. Board
  • Christiane Pieraggi (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Appointed to fill vacancy

Neutral Parties

  • Sondra J. Vanella (ALJ)
    OAH
  • Judy Lowe (commissioner)
    ADRE

Other Participants

  • John Neelsen (unknown)
    Candidate for Board election
  • Tania Almonte (board member)
    Tempe Villages Homeowners Association, Inc. Board
    Former Board member whose resignation created a vacancy
  • Ruby (witness assistant)
    Aided in counting votes

Lee & Kim Edwards v. Scottsdale Embassy Condominium Association

Case Summary

Case ID 21F-H2120028-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-07-28
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Lee & Kim Edwards Counsel Terry Foster, Esq.
Respondent Scottsdale Embassy Condominium Association Counsel

Alleged Violations

A.R.S. § 33-1255

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or A.R.S. § 33-1255, ruling that the statute was inapplicable due to the specific provisions in the Declaration regarding the 1/26 assessment calculation.

Why this result: Petitioner failed to meet the burden of proof, and the ALJ determined A.R.S. § 33-1255 was superseded by the Declaration, which mandated assessments based on the undivided 1/26 interest in the common elements.

Key Issues & Findings

Assessment calculation based on undivided interest in common areas

Petitioner challenged the Association's decision to change assessments from a historical square footage basis to a 1/26 interest calculation, arguing that this method violates A.R.S. § 33-1255 by charging for limited common elements (patios/parking).

Orders: The petition of Lee & Kim Edwards is dismissed; Respondent is deemed the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255
  • Declaration Article I, Section 5
  • Declaration Article II, Section 5
  • Declaration Article II, Section 7
  • Declaration Article IV, Section 4
  • Declaration Article VI, Section 9

Analytics Highlights

Topics: condominium, assessment, cc&r, statutory interpretation, common elements, limited common elements
Additional Citations:

  • A.R.S. § 32-2199(1)
  • A.R.S. § 33-1255
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369
  • Powell v. Washburn, 211 Ariz. 553
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70

Video Overview

Audio Overview

Decision Documents

21F-H2120028-REL Decision – 899379.pdf

Uploaded 2026-04-24T11:32:11 (123.6 KB)

21F-H2120028-REL Decision – 856603.pdf

Uploaded 2026-04-24T11:32:19 (98.1 KB)

Assessment Methodology Dispute: Edwards v. Scottsdale Embassy Condominium Association

Executive Summary

This document provides a comprehensive analysis of the legal dispute between homeowners Lee & Kim Edwards (Petitioners) and the Scottsdale Embassy Condominium Association (Respondent) concerning a change in the methodology for calculating homeowner assessments. The core of the conflict was the Association’s decision to shift from a historical practice of assessments based on unit square footage to a uniform rate where each of the 26 units pays an equal 1/26 share of the common expenses.

The dispute was adjudicated by an Administrative Law Judge (ALJ) in two separate hearings. In both instances, the ALJ ruled in favor of the Association, dismissing the petitions filed by the Edwards.

Key Takeaways:

Change in Methodology: The Association’s Board, acting on legal advice received in January 2020, concluded that its 40-year practice of using a square-footage-based assessment violated the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Board subsequently implemented a 1/26 equal-share assessment method after a majority of homeowners selected this option.

Initial Ruling on “Uniform Rate”: In the first hearing in February 2021, the Petitioners argued that the historical square footage method was a “uniform rate” and that the Association had waived its right to change the long-standing practice. The ALJ rejected this, finding that the new 1/26 rate complied with the CC&Rs’ requirement for a “uniform rate” (Article VI, Section 9) and aligned with each unit’s specified 1/26 undivided interest in the common elements (Article VI, Section 4(d)).

Rehearing Ruling on State Statute: The Petitioners were granted a rehearing in July 2021, where they argued that the 1/26 method violated Arizona statute A.R.S. § 33-1255 by improperly charging all owners for “limited common elements” like patios and parking spaces. The ALJ again ruled against the Petitioners, concluding that the state statute did not apply. The ruling was based on a key provision in the statute: “Unless otherwise provided for in the declaration.” The judge found that the Association’s Declaration did provide otherwise by defining patios and parking as general common elements and explicitly mandating that costs be shared based on each unit’s 1/26 interest.

Final Outcome: The petition was definitively dismissed after the rehearing, making the ALJ’s order binding. The Association’s adoption of the 1/26 assessment rate was upheld as compliant with its governing documents.

——————————————————————————–

Background of the Dispute

The legal conflict originated from a single-issue petition filed on November 20, 2020, by Lee and Kim Edwards, owners of unit 6937 in the Scottsdale Embassy Condominium development. The petition, filed with the Arizona Department of Real Estate, alleged that the Scottsdale Embassy Condominium Association had violated its CC&Rs, specifically Article VI, Section 9, and Article IV, Section 1.

The central issue was the Association Board’s decision to change the long-standing method of calculating homeowner assessments. For over 40 years, assessments had been based on the square footage of each unit. In 2020, the Board implemented a new system where the Association’s annual budget was divided equally among the 26 units, with each owner paying a 1/26 share. The Petitioners sought to enforce the historical calculation method unless and until the CC&Rs were properly amended.

Chronology of the Assessment Change

Historical Practice: For more than four decades, the Association calculated and charged member assessments based on the square footage of each condominium unit.

Legal Consultation (January 2020): Two members of the Association’s Board consulted with an attorney regarding the legality of the historical assessment method.

Attorney Recommendation (January 24, 2020): The attorney advised the Association that, to ensure compliance with the CC&Rs, it should calculate assessments based on each homeowner’s 1/26 interest in the common areas. The attorney’s letter stated:

Homeowner Consultation: Following the legal advice, the Board informed homeowners that the prior square-footage method violated the CC&Rs. The Board sought input on three potential assessment methods: the 1/26 rate, a variable blended rate, or continuing with the square footage rate. A majority of homeowners selected the 1/26 rate. The Board noted that any method other than the 1/26 rate would require a formal amendment to the CC&Rs.

Implementation (September 26, 2020): The Board officially notified homeowners that it would begin charging assessments based on the 1/26 rate and that an amendment to the CC&Rs was not necessary to implement this change.

Initial Hearing and Decision (February 2021)

An evidentiary hearing was held on February 9, 2021, before Administrative Law Judge Velva Moses-Thompson.

Arguments Presented

Petitioners (Edwards)

1. The historical square footage rate qualified as a “uniform rate” and was compliant with the CC&Rs.
2. By using the square footage rate for over 40 years, the Association had waived its right to enforce a different method like the 1/26 rate.

Respondent (Association)

1. The plain language of the CC&Rs requires that each homeowner pay an assessment based on the 1/26 rate.
2. It is not legally possible to waive a mandatory CC&R requirement through past practice.

On February 19, 2021, the ALJ issued a decision dismissing the petition. The judge’s conclusions of law were based on a direct interpretation of the CC&Rs:

Uniform Rate Compliance: The ALJ determined that the “preponderance of the evidence” showed that the Association’s 1/26 rate was a uniform rate that complied with Article VI, Section 9 of the CC&Rs.

Burden of Proof: The Petitioners failed to meet their burden to prove that the Association had violated its governing documents.

Outcome: The Association was deemed the prevailing party, and the petition was dismissed.

Rehearing and Final Decision (July 2021)

The Petitioners filed a request for a rehearing on March 30, 2021, which was granted. The rehearing was held on July 8, 2021. The Respondent did not appear at this hearing, as its counsel had withdrawn from representation without formally notifying the tribunal.

In the rehearing, the Petitioners introduced a new argument, alleging that the 1/26 assessment method violated Arizona state law, specifically A.R.S. § 33-1255.

• The core of this argument was that the 1/26 rate improperly included charges for “limited common elements,” such as patios and assigned parking spaces.

• The Petitioners contended that this forced all homeowners to pay for the maintenance of elements that were assigned to and benefited fewer than all units, in direct violation of the statute.

On July 28, 2021, the ALJ issued a final decision, once again dismissing the petition. The ruling hinged on the precise wording of both the state statute and the Association’s Declaration.

Applicability of A.R.S. § 33-1255: The judge found that the statute did not apply to this matter. The relevant section of the law, A.R.S. § 33-1255(C), begins with the critical phrase: “Unless otherwise provided for in the declaration…”

Supremacy of the Declaration: The ALJ concluded that the Association’s Declaration did provide otherwise. The CC&Rs explicitly:

◦ Define “Common Elements” broadly to include patios and parking areas (Article I, Section 3).

◦ Establish that each unit has an “undivided interest in the general common areas” of 1/26 (Article I, Section 5).

◦ Mandate that each unit’s share of costs for repair and maintenance of common areas is the “same as its undivided interest in the common elements” (Article IV, Section 4(d)).

Final Outcome: Because the Declaration’s specific provisions overrode the general terms of the state statute, the Association was found to be in compliance. The petition was dismissed, and the order was deemed binding on the parties.

Key Legal Principles and Definitions

Concept

Definition / Application in Case

Burden of Proof

The Petitioners were required to establish their claim by a “preponderance of the evidence.”

Preponderance of the Evidence

Defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The ALJ found the Petitioners failed to meet this standard in both hearings.

Restrictive Covenants

Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the parties’ intent and be interpreted as a whole. The ALJ’s decisions were based on a direct interpretation of the CC&Rs’ language.

Common Elements (per CC&Rs)

A broad definition including multifamily structures, land, roofs, ceilings, foundations, storage spaces, patios, parking areas, recreational facilities, lawns, pipes, and conduits.

Unit (per CC&Rs)

A freehold estate consisting of the interior space of an apartment. The definition explicitly states that common elements are not part of the unit.

Undivided Interest (per CC&Rs)

Article I, Section 5 clearly establishes that “The undivided interest in the general common areas… which shall be conveyed with each respective units shall be 1/26.” This provision was central to the final ruling.

Study Guide: Edwards v. Scottsdale Embassy Condominium Association

This study guide provides a comprehensive review of the administrative case between Lee & Kim Edwards and the Scottsdale Embassy Condominium Association, based on the provided legal decisions. It includes a short-answer quiz, an answer key, suggested essay questions, and a detailed glossary of key terms.

Short-Answer Quiz

Answer the following questions in two to three sentences each, based on the information provided in the case documents.

1. What was the central conflict between the Petitioners (Lee & Kim Edwards) and the Respondent (Scottsdale Embassy Condominium Association)?

2. For over 40 years, how did the Association historically calculate assessments for homeowners?

3. What specific event in January 2020 prompted the Association’s Board to change the assessment method?

4. In the first hearing on February 9, 2021, what were the two main arguments presented by Mr. Edwards?

5. What was the Administrative Law Judge’s conclusion regarding the “uniform rate” requirement from CC&Rs Article VI, Section 9 in the initial decision?

6. Upon what new legal grounds did the Petitioners base their March 30, 2021, request for a re-hearing?

7. According to the CC&Rs, what is the defined undivided interest in the general common areas for each unit?

8. Why did the Administrative Law Judge ultimately conclude that Arizona Revised Statutes (A.R.S.) § 33-1255 did not apply in this case?

9. What legal standard of proof did the Petitioners need to meet to successfully prove their case?

10. What was the final, binding outcome of the re-hearing held on July 8, 2021?

——————————————————————————–

Answer Key

1. The central conflict concerned the method for calculating homeowner assessments. The Petitioners argued for the historical method based on unit square footage, while the Respondent implemented a new method where each of the 26 units paid an equal share (1/26 rate) of the Association’s costs.

2. For over 40 years, the Association historically calculated assessments based on the square footage of each condominium unit. This practice was changed by the Board in 2020.

3. In January 2020, two Board members met with an attorney who advised that to comply with the CC&Rs, the Association should charge assessments based on each homeowner’s 1/26 interest in the common areas, not on square footage.

4. Mr. Edwards argued that the historical square footage rate was a “uniform rate” that complied with the CC&Rs. He also contended that by using this method for 40 years, the Association had waived its right to enforce a different assessment method like the 1/26 rate.

5. The Judge concluded that the Respondent’s assessment method, based on a uniform rate of 1/26 of the Association’s costs for each unit, did comply with Article VI, Section 9. Therefore, the Petitioners failed to prove the Association had violated the CC&Rs.

6. The Petitioners based their request for a re-hearing on the new allegation that the Respondent had violated Arizona Revised Statutes (A.R.S.) § 33-1255. They argued the 1/26 rate improperly required members to pay for limited common elements, such as patios and parking spaces, not assigned to them.

7. According to Article I, Section 5 of the Declaration (CC&Rs), the undivided interest in the general common areas established and conveyed with each respective unit is 1/26.

8. The Judge concluded that A.R.S. § 33-1255 did not apply because the statute itself contains an exception: “Unless otherwise provided for in the declaration.” In this case, the Association’s Declaration explicitly required that each member be charged an assessment equivalent to their 1/26 interest in the total costs, which included patios and parking areas.

9. The Petitioners bore the burden of proof to establish their claims by a “preponderance of the evidence.” This standard requires proof that convinces the trier of fact that a contention is more probably true than not.

10. Following the re-hearing, the Administrative Law Judge again ordered that the petition of Lee & Kim Edwards be dismissed. The Respondent was deemed the prevailing party, and the order was declared binding on the parties.

——————————————————————————–

Essay Questions

The following questions are designed for longer, essay-style responses. Answers are not provided.

1. Trace the evolution of the Petitioners’ legal strategy from the initial petition filed on November 20, 2020, to the arguments made during the re-hearing on July 8, 2021. How did their core arguments change, and what new evidence or legal statutes were introduced?

2. Analyze the concept of a “uniform rate” as required by Article VI, Section 9 of the CC&Rs. Discuss how both the Petitioners and the Respondent interpreted this phrase to support their respective assessment methods (square footage vs. 1/26 rate).

3. Explain in detail the role of A.R.S. § 33-1255 in the re-hearing. Why did the Petitioners believe it supported their case, and what specific language in both the statute and the Association’s Declaration led the Administrative Law Judge to rule that it did not apply?

4. Evaluate the actions taken by the Association’s Board of Directors in 2020. Consider their consultation with an attorney, their communication with homeowners, and their final decision to implement the 1/26 rate. Discuss whether these actions were consistent with the powers and obligations outlined in the CC&Rs.

5. Discuss the legal argument of “waiver” raised by Mr. Edwards in the first hearing. Explain what he meant by this and why the Association’s 40-year history of using a square-footage-based assessment was central to this claim. Why did this argument ultimately fail?

——————————————————————————–

Glossary of Key Terms

Definition

1/26 Rate

The assessment method where the Association’s annual budget is divided 26 ways, with each unit responsible for paying an equal portion. This is based on each unit’s 1/26 undivided interest in the common areas as specified in the CC&Rs.

Administrative Law Judge (ALJ)

The independent judicial officer who presides over administrative hearings, hears evidence, and issues a decision. In this case, the ALJ was Velva Moses-Thompson.

A.R.S. § 32-2199(1)

The Arizona Revised Statute that permits a condominium unit owner to file a petition with the Department of Real Estate for a hearing regarding alleged violations of the Condominium Act.

A.R.S. § 33-1255

The Arizona Revised Statute concerning common expenses. It states that unless the declaration provides otherwise, expenses for a limited common element shall be assessed against the units to which it is assigned, and expenses benefitting fewer than all units shall be assessed exclusively against the units benefitted.

Arizona Department of Real Estate

The state agency authorized by statute to receive and decide Petitions for Hearings from members of condominium associations in Arizona.

Burden of Proof

The obligation on a party in a legal proceeding to establish its claims by a required standard of evidence. In this case, the Petitioners bore the burden of proof.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set up the guidelines for a planned community or condominium. Also referred to as the “Declaration” in the provided documents.

Common Area / Common Elements

As defined in Article I, Section 3 of the CC&Rs, this includes the multifamily structure (except for the units), land, air space, bearing walls, roofs, storage spaces, patios, recreational facilities, lawns, pipes, and other premises designed for common use.

Declaration

Another term for the Covenants, Conditions, and Restrictions (CC&Rs).

Lee & Kim Edwards

The Petitioners in the case and owners of unit 6937 in the Scottsdale Embassy Condominium development.

Office of Administrative Hearings

An independent state agency to which the Department of Real Estate refers petitions for evidentiary hearings.

Petitioners

The party that initiates a legal action or petition. In this case, Lee & Kim Edwards.

Preponderance of the Evidence

The evidentiary standard required to be met by the Petitioners. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Scottsdale Embassy Condominium Association.

Restricted Common Area

As defined in Article I, Section 3(b) of the CC&Rs, this refers to a separately designed and exclusive parking area for each unit as assigned by the Board of Directors.

Scottsdale Embassy Condominium Association

The Respondent in the case; the condominium unit owners’ association for the development.

Square Footage Rate

The historical method of calculating assessments for over 40 years, where each unit’s assessment was based on its square footage.

Uniform Rate

A requirement from Article VI, Section 9 of the CC&Rs that states both regular and special assessments must be fixed at a uniform rate for all units. The interpretation of this term was central to the dispute.

As defined in Article I, Section 4 of the CC&Rs, a separately designated freehold estate consisting of the space bounded by the interior surfaces of the perimeter walls, floors, ceilings, windows, and floors of each apartment. It does not include common elements.

Waiver

A legal argument made by the Petitioners that because the Association had charged assessments based on square footage for 40 years, it had relinquished or “waived” its right to enforce a different method.

4 Shocking Lessons from an HOA Lawsuit That Could Upend How You See Your Fees

Introduction: The 40-Year Mistake

If you live in a condominium or a community governed by a Homeowners Association (HOA), you likely operate under a simple assumption: the way things have always been done is the correct and legal way. Monthly fees, maintenance schedules, and community rules that have been in place for decades feel permanent and unassailable. But what if they aren’t?

This was the central question in the case of Lee & Kim Edwards versus the Scottsdale Embassy Condominium Association. For over 40 years, the Association calculated homeowner fees based on the square footage of each unit—a practice that seemed fair and logical, and one that was never questioned by residents.

Then came the twist. In January 2020, after consulting with an attorney, the HOA board announced a shocking revelation: their 40-year-old assessment method was a direct violation of the community’s own governing documents. The board presented the legal findings to the community and sought their input on how to proceed. After being given the choice between the old method, a blended rate, or a new flat-rate fee that complied with the rules, most homeowners voted for the compliant flat-rate system for every single unit, regardless of its size.

Homeowners sued to keep the old method, sparking a legal battle that went all the way to an administrative court. The resulting decisions offer surprising and crucial lessons for every homeowner paying HOA dues. Here are the four most impactful takeaways from the case that could change how you view your own community’s rules.

1. “Past Practice” Means Nothing if It Violates the Rules

The primary argument made by the petitioners, Mr. and Mrs. Edwards, was that the Association had “waived its right” to change the assessment method. After all, by using the square-footage calculation for four decades, hadn’t they established an unbreakable precedent? It seemed like a common-sense argument rooted in history and consistency.

The court, however, completely rejected this line of reasoning. The Administrative Law Judge’s decision was not based on historical practice but on the clear, written rules found in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Association argued that it’s “not possible to waive the CC&R requirement,” and the court agreed.

The Lesson: This case powerfully demonstrates that tradition or “how things have always been done” cannot override the explicit language of an HOA’s governing documents. The CC&Rs are a contract. The lesson is clear: if your HOA’s practice contradicts its documents, the practice is invalid. The board has a fiduciary duty to follow the written rules, not a 40-year-old mistake.

2. Your CC&Rs Are a Binding Contract—Read Them

Throughout the legal proceedings, the Administrative Law Judge consistently referred back to the specific text of the CC&Rs to make a final decision. The entire case ultimately hinged on the interpretation of a few key sentences written decades ago.

The most critical passage, which decided the outcome, was from Article VI, Section 4(d) of the community’s governing documents:

“Each unit’s share shall be the same as its undivided interest in the common elements of the total amount determined under the subparagraphs (a), (b), (c), and (d) above.” —Scottsdale Embassy Condominium Association CC&Rs, Article VI, Section 4(d)

This single sentence was the linchpin. It explicitly linked each unit’s assessment share to its “undivided interest in the common elements.” Another section of the document, Article I, Section 5, had already established that interest as an equal 1/26 for all 26 units.

The Lesson: This is a classic example of legal cross-referencing in a contract. Section 4(d) provided the instruction (base fees on “undivided interest”), while Article I, Section 5 provided the specific value (1/26). With both parts present and unambiguous, the court had no choice but to enforce them exactly as written, leaving no room for interpretations based on fairness or history. The contract was the contract.

3. A “Uniform Rate” Might Not Mean What You Think

One of the central points of contention was the term “uniform rate.” Article VI, Section 9 of the CC&Rs required that all assessments “must be fixed at a uniform rate for all units.”

The homeowners argued that the square footage rate was, in fact, a “uniform rate”—a consistent price per square foot applied to every unit. It’s an interpretation many of us might find reasonable.

However, the HOA Board and the court had a different interpretation. The judge found that the flat 1/26 rate was the correct interpretation of a “uniform rate” because it was uniformly applied to every unit’s established 1/26 interest in the common areas. In the court’s view, the “rate” being applied uniformly was the 1/26 fraction of the total budget. The fact that this resulted in different dollar amounts for square-footage fees was irrelevant; the legal share was what had to be uniform.

The Lesson: Common-sense terms like “uniform” can have very specific legal meanings within the context of your governing documents. The true definition is found not in a dictionary, but in how the term is defined and applied by the rest of the document’s provisions.

4. Your HOA’s Rules Can Sometimes Override State Law

In a final attempt to overturn the decision, the petitioners filed for a re-hearing. This time, they cited a specific Arizona state law, A.R.S. 33-1255. This statute says that expenses for “limited common elements”—things like assigned patios or parking spaces that only benefit specific units—should be assessed only against those units that benefit from them. The homeowners argued that the new 1/26 flat fee unfairly forced them to pay for their neighbors’ patios and parking spots, a direct violation of state law.

Surprisingly, this argument also failed. The reason is found in the crucial introductory clause of the state law itself: “Unless otherwise provided for in the declaration…”

Because the Scottsdale Embassy’s Declaration did provide otherwise—by explicitly rolling all general and restricted common area costs into the total budget before calculating each unit’s 1/26 share—the community’s own rules legally superseded the default state statute. The judge concluded that the state law “does not apply to this matter because the Declaration requires” a different method.

The Lesson: This is perhaps the most counter-intuitive lesson of all. This demonstrates a key principle of contract law and planned community governance: state statutes often provide a “default” rule for situations a community’s documents don’t address. However, they also grant communities the power to create their own specific rules, which, if legally permissible, will take precedence. Homeowners cannot assume that a state law automatically protects them if their community’s own governing documents have a more specific rule in place.

Conclusion: Are You Sure You Know What You Agreed To?

The central message from the Scottsdale Embassy case is undeniable: in an HOA, the written word is law. The CC&Rs and other governing documents are a binding contract that dictates the rules, regardless of 40 years of history, common-sense assumptions, or even some default state laws. What you believe is fair or standard practice is irrelevant if the document you agreed to upon purchase says otherwise.

This case was decided by a few sentences written decades ago. When was the last time you read your community’s governing documents from cover to cover?

Case Participants

Petitioner Side

  • Lee Edwards (petitioner, witness)
  • Kim Edwards (petitioner)
  • Teresa H. Foster (petitioner attorney)
    Ellis & Baker, P.C.
    Also referred to as Terri Foster and Terry Foster

Respondent Side

  • Lauren Vie (respondent attorney)
    Appeared for initial hearing; later noted as withdrawn
  • Caleb Koch (board president, witness)
    Scottsdale Embassy Condominium Association
  • Mary Edinburgh (board member, witness)
    Scottsdale Embassy Condominium Association
  • Beth Mulcahy (respondent attorney)
    Mulcahy Law Firm, PC
    Recipient of transmission; noted as withdrawn counsel prior to rehearing

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Electronic transmission recipient

Other Participants

  • Miranda Alvarez (unknown)
    Associated with transmission for petitioner's attorney

Erik R. Pierce v. Sierra Morado Community Association

Case Summary

Case ID 20F-H2020053-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-02-10
Administrative Law Judge Adam D. Stone
Outcome The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Erik R. Pierce Counsel James C. Frisch
Respondent Sierra Morado Community Association Counsel Nicholas C.S. Nogami and Heather M. Hampstead

Alleged Violations

Article 11, Section 11.1

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.

Why this result: The Petitioner failed to meet the burden of proof to establish that the Respondent violated CC&R Section 11.1, as the ALJ found the Board's decision to temporarily delay enforcement pending litigation and settlement discussions fell within the discretion granted by the CC&R.

Key Issues & Findings

Failure of HOA to Enforce Architectural Approval Conditions (Hot Tub Screening)

Petitioner alleged that the HOA failed to enforce the mandatory installation of a pergola and screening around a neighbor's hot tub, a condition imposed by the Architectural Review Committee when retroactively approving the installation.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • CC&R Article 11, Section 11.1
  • CC&R Article 4, Section 4.27

Analytics Highlights

Topics: HOA Enforcement, CC&R Dispute, Architectural Control, Discretionary Enforcement
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.09
  • 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, Section 4.27
  • CC&R Article 11, Section 11.1
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

20F-H2020053-REL Decision – 850237.pdf

Uploaded 2026-04-26T09:52:48 (43.0 KB)

20F-H2020053-REL Decision – 850239.pdf

Uploaded 2026-04-26T09:52:51 (7.1 KB)

20F-H2020053-REL Decision – 853778.pdf

Uploaded 2026-04-26T09:52:54 (119.9 KB)

20F-H2020053-REL Decision – 850237.pdf

Uploaded 2026-01-23T17:32:29 (43.0 KB)

20F-H2020053-REL Decision – 850239.pdf

Uploaded 2026-01-23T17:32:31 (7.1 KB)

20F-H2020053-REL Decision – 853778.pdf

Uploaded 2026-01-23T17:32:32 (119.9 KB)

Administrative Hearing Briefing: Pierce v. Sierra Morado Community Association

Executive Summary

This briefing synthesizes the key findings and judicial decision in the administrative case of Erik R. Pierce versus the Sierra Morado Community Association (SMCA), Case No. 20F-H2020053-REL. The petition, filed by homeowner Erik R. Pierce, was ultimately denied by the Administrative Law Judge on February 10, 2021.

The core of the dispute was Pierce’s allegation that the SMCA failed to enforce its Covenants, Conditions, and Restrictions (CC&Rs) against his neighbors, the Kinstles, who installed a hot tub visible from Pierce’s property, creating a privacy violation. While the SMCA Board retroactively approved the hot tub, it did so with the explicit condition that a pergola and screening be installed to mitigate the visibility issue. The Kinstles subsequently failed to install the required screening.

The judge concluded that the SMCA’s conditional approval resolved the initial violation claim under CC&R Section 4.27. The central issue then became whether the SMCA’s subsequent failure to compel the installation of the screening constituted a violation of its enforcement duty under CC&R Section 11.1. The judge ruled that it did not, finding that the CC&Rs grant the Association a discretionary right to enforce its rules, not an absolute obligation. The judge found persuasive the SMCA’s testimony that it delayed enforcement actions due to the ongoing litigation and in an attempt to foster a settlement between the neighbors. This exercise of discretion was deemed permissible under the Association’s governing documents.

1. Case Overview

Parties and Legal Representation

Entity

Legal Counsel

Petitioner

Erik R. Pierce

James C. Frisch, Esq. & Michael Resare, Esq. (King & Frisch, P.C.)

Respondent

Sierra Morado Community Association (SMCA)

Heather M. Hampstead, Esq. & Nicholas C.S. Nogami, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)

Key Case Details

Case Number: 20F-H2020053-REL

Presiding Judge: Adam D. Stone, Administrative Law Judge

Hearing Date: January 25, 2021 (conducted via Google Meet)

Decision Date: February 10, 2021

Jurisdiction: The Arizona Department of Real Estate (ADRE) is statutorily authorized to hear petitions from homeowners’ association members. This case was referred by the ADRE to the Office of Administrative Hearings for an evidentiary hearing.

2. Core Dispute and Allegations

Petitioner’s Complaint

On March 23, 2020, Erik R. Pierce filed a complaint with the ADRE alleging that the SMCA was in violation of its own CC&Rs, specifically Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

The dispute originated with the installation of a hot tub by Pierce’s neighbors, the Kinstles. Pierce testified that the hot tub and its occupants were visible from inside his house, and that occupants of the hot tub could look directly into his home, violating his right to privacy.

Timeline of Key Events

September 4, 2019: Pierce submits his initial complaint to the SMCA, noting the hot tub’s visibility and asserting that the Kinstles had failed to obtain prior approval from the Architectural Review Committee (ARC).

Post-September 2019: The SMCA informs the Kinstles that they installed the hot tub without approval and directs them to submit plans for the proper approval process.

February 10, 2020: After several rejections, the SMCA Board approves the Kinstles’ hot tub installation on the condition that a pergola and screening are installed.

March 3, 2020: Pierce receives a letter from the property management company, AAM, LLC, stating that the installation was approved with the screening requirement and that the complaint was closed.

January 25, 2021: At the time of the hearing, the Kinstles had still not installed the required pergola and screening.

3. Analysis of Key Testimonies

The decision was informed by testimony from four witnesses presented by the Petitioner.

Erik R. Pierce (Petitioner): Outlined the timeline of the dispute, the visibility of the neighbors’ hot tub, the resulting privacy violation, and the SMCA Board’s failure to enforce its own conditional approval requiring a pergola and screening.

Bill Oliver (Former SMCA President, Fall 2019 – April 2020): Confirmed that the Board approved the hot tub retroactively with the stipulation for a pergola and screening. He stated the Board had a “rigorous process of enforcement” but could not recall if a specific violation letter was sent to the Kinstles after the conditional approval was granted.

Jodie Cervantes (Former Community Manager, 2019 – June 2020): Testified that she believed the CC&Rs were enforced and the matter was closed. She suggested the Kinstles had a six-month period to comply with the screening requirement, which she believed was in the Design Guidelines, but could not point to the specific language.

Martin Douglas (Current SMCA President, from April 2020): Stated he had been to the Pierce residence for another matter and the hot tub was not visible to him. He attributed the lack of enforcement action to the “ongoing litigation and multiple settlement offers which were being exchanged.” He testified that upon resolution of the case, the Board “will follow through with enforcement actions should the Kinstle’s fail to comply.”

4. Judicial Reasoning and Decision

The Administrative Law Judge’s decision centered on the interpretation of the SMCA’s CC&Rs and the discretionary power of its Board.

Governing CC&R Provisions

The ruling rested on the specific language of two sections of the SMCA CC&Rs:

Section 4.27 (Swimming Pools and Spas): This section permits the installation of a hot tub only if it is “properly screened… if neither it nor its occupants are Visible from Neighboring Property, and with the prior written approval of the Architectural Review Committee.”

Section 11.1 (Enforcement): This section states that “The Association or any Owner shall have the right to enforce the Project Documents… The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents in the future.”

Administrative Law Judge’s Conclusions

1. Resolution of the Section 4.27 Claim: The judge determined that the initial issue regarding the unapproved hot tub “was essentially resolved by the Board instructing the Kinstle’s erect a pergola and install screening.” By making its approval conditional on a privacy solution, the Board addressed the core requirement of the section.

2. The “Heart of the Matter” – Section 11.1 Enforcement: The judge identified the central question as whether the SMCA violated Section 11.1 by failing to enforce the screening requirement against the Kinstles.

3. Discretionary vs. Mandatory Enforcement: The judge concluded that the language of Section 11.1 grants the Board a “right to enforce, not an absolute obligation.”

4. Rationale for Delayed Enforcement: The judge found the testimony of the current SMCA President, Martin Douglas, to be “more persuasive.” Douglas’s explanation—that the Board delayed enforcement to “foster an agreement with the neighbors” amid ongoing litigation—was accepted as a valid exercise of the Board’s discretion.

5. Final Ruling: The judge stated, “Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.” Consequently, the judge ruled that the Petitioner failed to prove by a preponderance of the evidence that the Respondent had violated CC&R Section 11.1.

Final Order

IT IS ORDERED that Petitioners’ petition is denied.

The order was issued on February 10, 2021, and is binding unless a rehearing is granted.

Study Guide: Pierce v. Sierra Morado Community Association (Case No. 20F-H2020053-REL)

This study guide provides a review of the administrative hearing concerning the dispute between Erik R. Pierce and the Sierra Morado Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of terms and entities involved in the case.

Short-Answer Quiz

Answer each of the following questions in two to three complete sentences, based on the provided source documents.

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

2. What was the initial reason for Mr. Pierce’s complaint against his neighbors, the Kinstles?

3. Which two sections of the Sierra Morado Community Association (SMCA) CC&Rs did Mr. Pierce allege were violated?

4. What action did the SMCA Board take after being informed that the Kinstles had installed a hot tub without prior approval?

5. What specific conditions did the SMCA Board require for the retroactive approval of the Kinstles’ hot tub installation?

6. According to former Board President Bill Oliver’s testimony, what was the Board’s common practice regarding architectural requests made after an installation?

7. What reason did Community Manager Jodie Cervantes give for her belief that no further enforcement action could be taken against the Kinstles?

8. According to current SMCA Board President Martin Douglas, why had the Board delayed enforcement actions against the Kinstles?

9. What was the Administrative Law Judge’s final decision regarding the alleged violation of CC&R Section 11.1?

10. How did the judge interpret the Board’s enforcement power as described in Section 11.1 of the CC&Rs?

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Answer Key

1. The primary parties were Erik R. Pierce, who was the Petitioner filing the complaint, and the Sierra Morado Community Association (SMCA), which was the Respondent. Mr. Pierce is a homeowner and member of the SMCA.

2. Mr. Pierce’s complaint originated because his neighbors, the Kinstles, installed a hot tub that was visible from his backyard. He testified that occupants in the hot tub were visible from inside his house, violating his privacy.

3. The Petitioner, Mr. Pierce, alleged that the Respondent, SMCA, was in violation of sections 4.27 and 11.1 of the SMCA CC&Rs. Section 4.27 pertains to the installation of spas, and Section 11.1 addresses the enforcement of project documents.

4. After Mr. Pierce filed his complaint, the SMCA informed the Kinstles that they had installed the hot tub without approval. The Board then directed the Kinstles to submit their plans and go through the proper architectural approval process.

5. The Kinstles’ hot tub was approved retroactively on February 10, 2020, on the condition that they install a pergola and screening. This was intended to address the visibility of the hot tub from Mr. Pierce’s property.

6. Bill Oliver, the SMCA President from fall 2019 to April 2020, testified that the Board would approve architectural requests retroactively. He confirmed that this is what occurred in the case of the Kinstles’ hot tub.

7. Jodie Cervantes, the Community Manager, testified that she believed the matter was closed because the Kinstles had six months to comply with the pergola and screening requirements. She believed this six-month deadline was outlined in the Design Guidelines, though she could not locate the specific language.

8. Martin Douglas, who became Board President in April 2020, testified that the Board delayed enforcement actions due to the ongoing litigation. He stated that multiple settlement offers were being exchanged in an effort to foster an agreement between the neighbors.

9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that Mr. Pierce did not establish by a preponderance of the evidence that the SMCA had violated CC&R Section 11.1.

10. The judge determined that Section 11.1 grants the Board a right to enforce the rules, not an absolute obligation to do so. This interpretation means the Board has the discretion to delay enforcement, which it did in this case to facilitate a potential settlement.

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Essay Questions

The following questions are designed for longer, essay-style responses. Use evidence and testimony from the case documents to construct a thorough analysis. No answers are provided.

1. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision. Analyze why the Petitioner, Erik R. Pierce, failed to meet this burden of proof concerning the violation of CC&R Section 11.1.

2. Trace the timeline of events from Mr. Pierce’s initial complaint on September 4, 2019, to the final decision on February 10, 2021. Discuss the key actions, delays, and decisions made by the SMCA Board during this period.

3. Compare and contrast the testimonies of Bill Oliver, Jodie Cervantes, and Martin Douglas. How do their different roles and timeframes with the SMCA shape their perspectives on the association’s enforcement process and the specific handling of the Kinstle case?

4. Analyze the Administrative Law Judge’s interpretation of CC&R Section 11.1. Discuss the distinction made between a “right to enforce” and an “absolute obligation,” and explain how this interpretation was central to the final ruling.

5. Based on the judge’s findings and the testimony of Martin Douglas, what are the likely next steps for the SMCA regarding the Kinstles’ non-compliance with the pergola and screening requirement? Evaluate the potential for future conflict or resolution between the parties involved.

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Glossary of Key Terms

Term / Entity

Definition

AAM, LLC

The property management company that employed Community Manager Jodie Cervantes and managed the Sierra Morado Community Association during the period of the dispute.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings. In this case, the ALJ was Adam D. Stone of the Office of Administrative Hearings.

Architectural Committee (ARC)

The committee within the SMCA responsible for approving construction, installations, and alterations to properties, as referenced in CC&R Section 4.27.

Arizona Department of Real Estate (ADRE)

The state agency authorized by statute to receive and decide Petitions for Hearing from members of homeowners’ associations. Mr. Pierce filed his initial complaint with this department.

Burden of Proof

The obligation on a party in a legal case to prove its allegations. In this case, the Petitioner had the burden to establish his claim by a “preponderance of the evidence.”

Covenants, Conditions, and Restrictions. These are the governing documents or rules of a planned community. The dispute centered on alleged violations of Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

Hearing

The formal proceeding held on January 25, 2021, where the parties presented exhibits and witness testimony to the Administrative Law Judge.

Office of Administrative Hearings

An independent state agency that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition or complaint to initiate a legal proceeding. In this case, the Petitioner was Erik R. Pierce.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom a petition or complaint is filed. In this case, the Respondent was the Sierra Morado Community Association (SMCA).

Retroactive Approval

The act of approving an architectural installation (such as a hot tub) after it has already been completed, which the SMCA Board did in this case.

Sierra Morado Community Association (SMCA)

The homeowners’ association in Tucson, Arizona, of which Erik R. Pierce and the Kinstles are members.

Stipulation

An agreement between the parties in a legal proceeding. In this case, the parties stipulated to enter all submitted exhibits into the record.

Your HOA Can Ignore Its Own Rules? A Surprising Legal Case Every Homeowner Needs to Understand

Introduction: The Homeowner’s Dilemma

Most homeowners in a planned community operate under a simple assumption: if a neighbor violates a clear rule, you can file a complaint, and the Homeowners Association (HOA) is required to take action. It’s the fundamental promise of an HOA—consistent enforcement to protect property values and quality of life.

But what happens when the HOA agrees a violation has occurred, demands a fix, and then… does nothing to enforce it?

A real-world legal case, Erik R. Pierce versus the Sierra Morado Community Association, provides a surprising and cautionary answer. The final court decision reveals a critical loophole that may exist in your own HOA agreement. This article will break down the three most counter-intuitive takeaways from that case that every homeowner should understand.

Takeaway 1: “A Right to Enforce” Isn’t an “Obligation to Enforce”

The core of the dispute was straightforward. Homeowner Erik Pierce filed a complaint because his neighbors, the Kinstles, installed a hot tub that was visible from his property, a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs)—the legally binding rules that govern the community. The HOA’s Architectural Committee retroactively approved the hot tub, but only on the condition that the neighbors install a pergola and screening to shield it from view.

The neighbors never installed the required screening, yet the HOA took no further enforcement action. This inaction led Mr. Pierce to sue the HOA.

The judge’s decision hinged on a crucial interpretation of the HOA’s governing documents. The judge ruled in favor of the HOA because the documents gave the Board the right to enforce the rules, not an absolute obligation to do so. This distinction granted the HOA discretion to choose its strategy. The judge found the board’s reasoning for the delay persuasive: it was deliberately choosing negotiation over immediate punitive action to resolve the conflict. The board’s discretion wasn’t just a right to do nothing; it was a right to choose a different path to compliance.

The key phrase here is “shall have the right to enforce.” Had the documents stated the board “shall enforce,” the outcome would likely have been entirely different. This single phrase transforms enforcement from a mandate into a strategic option for the board.

The Administrative Law Judge’s decision highlights this critical point:

“…Section 11.1 only gives the Board a right to enforce, not an absolute obligation. While Petitioner is understandably upset that there has yet to be any follow through on enforcement of the screening requirements, this tribunal finds the testimony of Mr. Douglas more persuasive, namely that the Board has delayed in enforcing because it was trying to foster an agreement with the neighbors. Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.”

This finding is shocking for most homeowners, who reasonably assume that the rules laid out in their CC&Rs are mandates for the board, not a menu of discretionary options.

Takeaway 2: Suing Your HOA Can Ironically Pause Enforcement

The board’s discretionary power was put on full display when Mr. Pierce filed his lawsuit, creating a legal Catch-22. The current SMCA Board President, Martin Douglas, testified that the board deliberately paused formal enforcement actions against the neighbors who had violated the architectural requirement.

The judge ultimately found that the board’s rationale for this pause was a valid exercise of its discretion. The decision to delay was framed not as inaction, but as a strategic choice “to foster an agreement with the neighbors” amidst the complexities of litigation.

This reveals a deep irony: by filing a petition to force the HOA’s hand, the homeowner inadvertently provided the context for the HOA to justify a delay. The judge accepted that the board’s attempt to find a negotiated solution instead of escalating fines and penalties during an active lawsuit was a reasonable use of its discretionary authority. This case demonstrates how legal action, intended to accelerate a resolution, can sometimes be used by an HOA board to justify a different, slower approach.

Takeaway 3: A Clear Rule Violation Doesn’t Guarantee a Win in Court

One of the most surprising aspects of this case is that the facts of the violation were not in dispute. The judge explicitly acknowledged that the neighbors were in violation of the Architectural Review Committee’s requirement. The official decision states:

“Based upon the evidence provided, the Kinstle’s are in violation of the requirement the ARC Committee imposed on them.”

Despite this clear violation by the neighbor, the homeowner, Mr. Pierce, still lost his case against the HOA.

The case was lost on a critical legal distinction: the lawsuit was not about the neighbor’s violation, but about the HOA’s alleged failure to act. Since the judge determined the HOA had the discretionary right—not the mandatory obligation—to enforce the rule, its choice to pursue negotiation rather than immediate punitive action was not considered a violation of its duties.

The lesson here is profound: proving a neighbor is breaking the rules is only the first step. To win a case against your HOA for non-enforcement, you must also prove that its response (or lack thereof) constitutes a breach of its specific duties as outlined in your community’s governing documents.

Conclusion: Know Your Documents, Temper Your Expectations

The case of Pierce v. Sierra Morado Community Association serves as a stark reminder that HOA governance is often more complex than it appears. The precise wording of your community’s CC&Rs is critically important, as a single phrase can be the difference between a mandatory duty and a discretionary power. This case illustrates that the gap between a rule existing on paper and the board’s power to enforce it can be vast.

As a homeowner, your first step should be to obtain a copy of your community’s most recent CC&Rs and search for the enforcement clause—does it say your board “shall” enforce the rules, or does it say they have the “right” to?

This case forces every homeowner to ask: If your governing documents give your board the ‘right’ to act, what leverage do you truly have to ensure they actually will?

Case Participants

Petitioner Side

  • Erik R. Pierce (petitioner)
  • James C. Frisch (petitioner attorney)
    King & Frisch, P.C.
  • Michael Resare (petitioner attorney)

Respondent Side

  • Nicholas C.S. Nogami (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Heather M. Hampstead (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Jodie Cervantes (property manager/witness)
    AAM, LLC
    Community Manager for Respondent SMCA
  • Bill Oliver (board member/witness)
    Former SMCA President (Fall 2019 to April 2020)
  • Martin Douglas (board member/witness)
    Current SMCA Board President (since April 2020)

Neutral Parties

  • Adam D. Stone (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • AHansen (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • djones (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • DGardner (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • ncano (unknown)
    Arizona Department of Real Estate
    Transmission recipient
  • c. serrano (clerk)
    Signed document transmission

Laura B Ganer v. Vincenz Homeowners Association

Case Summary

Case ID 20F-H2020060-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-16
Administrative Law Judge Velva Moses-Thompson
Outcome The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Laura B Ganer Counsel
Respondent Vincenz Homeowners Association Counsel Mark B. Sahl, Esq.

Alleged Violations

VHA CC&Rs Article 10 § 11, Article 7 § 3, and Article 12 § 2

Outcome Summary

The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.

Key Issues & Findings

Challenge to new HOA parking policy adoption

Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: Parking Policy, CC&Rs, Board Authority, Burden of Proof, Dismissal
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199(B)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

20F-H2020060-REL Decision – 822882.pdf

Uploaded 2026-01-23T17:33:39 (108.6 KB)

Briefing Document: Ganer v. Vincenz Homeowners Association (Case No. 20F-H2020060-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in the case of Laura B. Ganer vs. the Vincenz Homeowners Association (VHA), case number 20F-H2020060-REL. The central dispute concerned a new on-street parking policy adopted by the VHA Board in 2020. The petitioner, Ms. Ganer, alleged this policy violated multiple articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs).

The Administrative Law Judge, Velva Moses-Thompson, ultimately dismissed the petition. The court concluded that the VHA Board acted within the explicit authority granted to it by the community’s governing documents, specifically CC&R Article 10, § 10.11.1, which empowers the Board to designate parking areas. The judge found that the petitioner failed to meet the burden of proof—a “preponderance of the evidence”—to establish that the VHA had violated its CC&Rs. The decision affirmed the Board’s right to establish rules and regulations for parking as outlined in the CC&Rs without requiring a full membership vote for an amendment.

Background of the Dispute

The case originated from a single-issue petition filed by homeowner Laura B. Ganer with the Arizona Department of Real Estate on or about May 20, 2020. The petition alleged that the Vincenz Homeowners Association violated its governing documents by adopting a new parking policy.

Parties:

Petitioner: Laura B. Ganer, a property owner within the VHA.

Respondent: Vincenz Homeowners Association (VHA).

Catalyst: The VHA Board of Directors adopted a new on-street parking policy in 2020.

Alleged Violations: The petition claimed the new policy violated VHA CC&R Article 10, Section 11; Article 7, Section 3; and Article 12, Section 2.

Legal Forum: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing, which took place on August 27, 2020.

The Contested 2020 Parking Policy

The policy adopted by the VHA Board resolved to allow on-street parking for specific vehicles in designated areas, provided the parking complied with associated rules.

Allowed Vehicles: Private passenger automobiles and pickup trucks that do not exceed one ton in capacity.

Designated Parking Areas:

1. Immediately in front of a Lot, for vehicles associated with the owner, resident, or their guests, or with the lot owner’s consent.

2. Immediately in front of any Common Area park within the Association.

3. Along any public street within the Association that does not border a Lot (e.g., in front of a Common Area tract).

Core Legal Arguments and Cited CC&Rs

The dispute centered on whether the VHA Board had the authority to enact the new parking policy or if doing so violated the foundational CC&Rs.

Petitioner’s Position (Laura B. Ganer)

Ms. Ganer argued that the new policy fundamentally contradicted the intent and letter of the CC&Rs.

Violation of Article 10: She asserted that the original intention of CC&R Article 10, Section 10.11.1 was to limit parking within the VHA.

Violation of Article 7: She contended the policy violates Article 7, Section 3, because it is “unreasonable” by allowing parking “virtually everywhere” within the community.

Implicit Amendment: The new policy was so expansive that it effectively constituted an amendment to the CC&Rs, which would require the procedure outlined in Article 12, Section 2 (a 67% member vote), not just a Board resolution.

Respondent’s Position (Vincenz HOA)

The VHA argued that its actions were a proper exercise of the authority explicitly granted to the Board in the CC&Rs.

Authority from Article 10: VHA contended that CC&R Article 10, § 10.11.1 expressly allows the Board to create parking rules by permitting parking “within areas designated for such purpose by the Board.”

Inapplicability of Article 7: The Association argued that Article 7, Section 3, which governs general “Association Rules,” did not apply because the parking policy was adopted under the specific authority of Article 10.

No Amendment Required: VHA maintained that since Article 10 grants the Board the power to adopt parking rules and regulations, an amendment to the CC&Rs under Article 12, Section 2 was not necessary.

Jurisdictional Argument: VHA also argued that the petition should be dismissed because Ms. Ganer failed to allege or provide facts that the VHA itself had improperly parked a vehicle in violation of the CC&Rs.

Relevant Articles from VHA CC&Rs

Article

Section

Provision Text

Article 10

§ 10.11.1

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

Article 10

§ 10.11.2

Governs restrictions on other vehicles like RVs, boats, and commercial vehicles, but allows the Board to designate areas and rules for them.

Article 7

“By a majority vote of the Board, the Association may… adopt, amend and repeal the Association Rules. The Association Rules shall be reasonable… and shall not be inconsistent with this Declaration…”

Article 12

“Except as otherwise provided in this Declaration, this Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of: (a) Members holding not less than sixty-seven percent (67%) of all Class A votes…”

Administrative Law Judge’s Findings and Decision

The Administrative Law Judge’s decision, issued on September 16, 2020, was based on a direct interpretation of the VHA’s governing documents and the evidence presented.

Legal Standard and Burden of Proof

• The petitioner, Ms. Ganer, bore the burden of proving her allegations by a “preponderance of the evidence,” defined as evidence that is more probably true than not.

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

Conclusions of Law

1. Interpretation of Article 10: The judge found that CC&R Article 10, Section 10.11.1 unambiguously forbids parking except in specified locations, including “in an area that has… been designated for parking by the Board.”

2. Board Authority: The court concluded that the VHA’s adoption of the parking policy was a valid exercise of the authority explicitly granted to the Board by Article 10.11.1 to designate such parking areas.

3. Failure to Meet Burden of Proof: Ms. Ganer failed to establish that the VHA violated any of the cited articles. The judge noted that Ganer did not even allege that the VHA itself had improperly parked a vehicle.

4. Overall Finding: The decision states, “Upon consideration of all of the evidence presented in this matter, the Administrative Law Judge concludes that VHA did not violate CC&R Article 7 § 3, Article 10 § 10.11, and CC&R Article 12 § 2 when it adopted the parking policy.”

Final Order

“IT IS ORDERED, the petition is dismissed.”

The decision is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Ganer v. Vincenz Homeowners Association

This guide provides a detailed review of the administrative law case Laura B. Ganer v. Vincenz Homeowners Association, Case No. 20F-H2020060-REL. It is designed to test comprehension of the facts, legal arguments, and final decision as presented in the source documents.

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Quiz: Short-Answer Questions

Instructions: Please answer the following questions in two to three complete sentences, using only information provided in the case decision.

1. Who were the petitioner and the respondent in this case, and what was their relationship within the community?

2. What specific action did the Vincenz Homeowners Association (VHA) take in 2020 that initiated this legal dispute?

3. List the three specific articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs) that petitioner Laura Ganer alleged were violated.

4. According to VHA’s CC&R Article 10 § 10.11.1, under what three conditions are private passenger automobiles and pickup trucks permitted to be parked?

5. What was Ms. Ganer’s primary argument for why the VHA’s new parking policy was “unreasonable” as defined under Article 7 § 3?

6. Upon what grounds did the VHA argue that the petition should be dismissed, relating to the petitioner’s specific allegations?

7. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision.

8. How did the VHA defend its adoption of the new parking policy without obtaining the 67% member vote required for amendments under Article 12 § 2?

9. What was the core reason the Administrative Law Judge concluded that Ms. Ganer failed to prove a violation of CC&R Article 10 § 10.11.1?

10. What was the final order issued by the Administrative Law Judge in this case?

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Answer Key

1. The petitioner was Laura B. Ganer, a property owner. The respondent was the Vincenz Homeowners Association (VHA). Ganer owned property within the planned community governed by the VHA.

2. In 2020, the VHA’s Board of Directors adopted a new parking policy that formally allowed on-street parking for certain vehicles in designated areas, such as in front of lots and common areas. This new policy prompted Ms. Ganer to file her petition.

3. Ms. Ganer alleged that the VHA violated Article 10, section 11; Article 7, section 3; and Article 12, section 2 of its Covenants, Conditions, and Restrictions.

4. CC&R Article 10 § 10.11.1 permits these vehicles to be parked within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.

5. Ms. Ganer argued that the new policy was unreasonable because it allows for parking virtually everywhere within the VHA. She asserted that the original intention of the CC&Rs was to limit parking, not expand it so broadly.

6. The VHA argued for dismissal because Ms. Ganer did not contend, nor provide facts to establish, that the VHA had actually parked an automobile or pickup truck in any prohibited area. The VHA stated the Office of Administrative Hearings only had jurisdiction over alleged violations, not the mere adoption of a policy.

7. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.

8. The VHA contended that an amendment was not required to adopt the parking policy. It argued that CC&R Article 10 § 10.11.1 already granted the Board the specific authority to designate parking rules and regulations.

9. The Judge concluded that Ms. Ganer failed to prove a violation because she did not allege that the VHA had actually parked a vehicle in a prohibited area. The Judge noted that the covenant forbids parking in a roadway or garage unless it is in an area designated by the Board.

10. The final order was that the petition is dismissed. This means the judge ruled in favor of the respondent, Vincenz Homeowners Association, and against the petitioner, Laura Ganer.

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Essay Questions

Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a detailed essay response for each prompt, drawing evidence and arguments directly from the provided legal decision.

1. Analyze the conflicting interpretations of CC&R Article 10 § 10.11.1 presented by Laura Ganer and the Vincenz Homeowners Association. How did the Administrative Law Judge resolve this conflict, and what does this reveal about the judicial interpretation of restrictive covenants?

2. Discuss the legal concept of “burden of proof” as it applied in this case. Explain who held the burden, what the standard was, and why the petitioner ultimately failed to meet it according to the Judge’s findings.

3. Examine the VHA’s argument that CC&R Article 7 § 3 (regarding the adoption of “Association Rules”) was not applicable to its creation of the new parking policy. Based on the text, what is the distinction between a board-designated rule under Article 10 and a formal “Association Rule” under Article 7?

4. Evaluate the petitioner’s claim that the new parking policy constituted an amendment to the Declaration, thereby violating CC&R Article 12 § 2, which requires a 67% member vote. Why was this argument unsuccessful, and what does the decision imply about the scope of a homeowner association board’s power?

5. Using the facts of the case, explain the procedural journey of a homeowner’s dispute within a planned community in Arizona, from the initial filing to the final administrative order.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes legal decisions. The ALJ in this matter was Velva Moses-Thompson.

Allowed Vehicles

A term from the VHA’s 2020 parking policy defining the types of vehicles permitted for on-street parking: private passenger automobiles and pickup trucks not exceeding one ton in capacity.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner bore the burden of proof.

An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or homeowners association.

Common Area

Land within a planned community owned by the association for the shared use and enjoyment of its members, such as a park.

Department

Refers to the Arizona Department of Real Estate, the state agency that received the initial petition from Ms. Ganer.

Notice of Hearing

A formal document issued by a legal body that sets the date, time, and location for a hearing and outlines the issues to be discussed. In this case, it was issued on July 1, 2020.

An acronym for the Office of Administrative Hearings, the state office where the evidentiary hearing for this case was held.

Petition

The formal written application filed by a party (the petitioner) to a legal body, initiating a case. Ms. Ganer filed her petition with the Department on or about May 20, 2020.

Petitioner

The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Laura B. Ganer.

Planned Community

A real estate development that includes common property and is governed by a homeowners’ association, with rules established by CC&Rs.

Preponderance of the Evidence

The evidentiary standard required to win a civil case, defined as proof that a contention is “more probably true than not.” It is a lower standard than “beyond a reasonable doubt.”

Restrictive Covenant

A provision in a deed or CC&R that limits the use of real property. In Arizona, if unambiguous, such covenants are enforced to give effect to the intent of the parties.

Respondent

The party against whom a petition is filed or who is responding to a lawsuit. In this case, the Vincenz Homeowners Association.

3 Surprising Lessons from One Homeowner’s Fight Against Her HOA’s New Parking Rules

For millions of homeowners, the relationship with their Homeowners Association (HOA) is often defined by a single, persistent source of frustration: parking rules. Whether it’s restrictions on street parking, rules about commercial vehicles, or limits on guest parking, these regulations are a frequent flashpoint for community disputes. We tend to think of these fights as homeowners pushing back against ever-tightening restrictions.

But what happens when the script is flipped? In a fascinating legal case from Arizona, a homeowner named Laura Ganer took her HOA to court not because the rules were too strict, but because the board enacted a new, more permissive parking policy. She believed the board had overstepped its authority by allowing on-street parking that had previously been forbidden.

The resulting decision from the Administrative Law Judge provides a masterclass in HOA governance. It peels back the layers of community documents to reveal how power is delegated and exercised. The outcome holds several surprising lessons for any homeowner who thinks they understand the rules of their community.

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1. The Devil in the Details: How a “Restriction” Became a Permission Slip

At the heart of Ms. Ganer’s case was her belief that the community’s founding documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were written to severely limit on-street parking. She pointed to what seemed like a clear and unambiguous rule in the Vincenz Homeowners Association (VHA) governing documents.

The rule, found in VHA CC&R Article 10 § 10.11.1, begins with a strong prohibition:

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

For many residents, the rule’s intent seemed clear: keep cars in garages and driveways. The critical turn, however, lay not in the prohibition but in the exceptions that followed. The power was vested in a single, potent phrase authorizing the Board to act: “…or within areas designated for such purpose by the Board.” This clause, tucked at the end of the sentence, transformed a restrictive rule into a grant of discretionary power. The judge found this language gave the VHA Board explicit authority to create its new policy. This is a classic example of how governing documents are drafted to provide operational flexibility, allowing a future board to adapt to changing community needs without undergoing the arduous process of a full membership vote to amend the CC&Rs. The Board wasn’t breaking the rules; it was using a specific power granted to it all along.

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2. A Board Rule Isn’t a Bylaw Amendment (And Why It Matters)

Ms. Ganer raised two additional legal arguments. First, she contended that such a fundamental change to the community’s parking landscape was effectively an amendment to the CC&Rs. If it were an amendment, it would have required a community-wide vote and approval of “not less than sixty-seven percent (67%) of all Class A votes,” as stipulated in Article 12 § 2.

The VHA countered, and the judge agreed, that the Board was not amending the CC&Rs. Instead, it was exercising a power the document had already granted it in Article 10: the power to “designate” parking areas. Because the mechanism for the board to act was already in the foundational document, no amendment—and therefore no membership vote—was necessary.

Critically, Ms. Ganer also alleged a violation of Article 7 § 3 of the CC&Rs, which states that any “Association Rules shall be reasonable.” The VHA’s response to this claim was a deft legal maneuver. It argued that Article 7 § 3 did not apply because the Board didn’t adopt the parking policy under its general authority to make rules; it acted under the specific authority granted in Article 10. This distinction is vital in HOA governance, as it illustrates how a specific grant of power can sometimes bypass the general requirements that apply to other board actions.

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3. An Opinion Isn’t Proof: The Heavy Burden on the Homeowner

Ms. Ganer’s claim that the new policy was “unreasonable” because it allowed “parking virtually everywhere” was her attempt to prove a violation of Article 7 § 3. To an outside observer, this might seem like a fair point. But in a legal setting, a personal feeling of unreasonableness is not evidence.

The Administrative Law Judge noted that as the petitioner, Ms. Ganer had the “burden of proof” to show the HOA violated the CC&Rs “by a preponderance of the evidence.” This legal standard requires convincing proof, not just a strong opinion. The court document provides a clear definition:

“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.”

Ultimately, the judge concluded that Ms. Ganer failed to meet this burden. Her assertion that the rule was unreasonable could not overcome the VHA’s argument that it had acted within the specific authority granted by Article 10. She did not provide convincing evidence of a violation, and the judge found in favor of the HOA, dismissing her petition entirely.

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Conclusion: The Ultimate Authority Is in the Fine Print

This case serves as a powerful lesson in HOA law, illustrating a key principle of document hierarchy. The ultimate authority is not what seems fair or what was historically done, but the exact wording in the community’s governing documents. A specific grant of authority will almost always override arguments based on general principles.

Here, the specific power to “designate” parking areas in Article 10 trumped both the general procedural requirement for a 67% vote for amendments in Article 12 and the general principle that rules must be “reasonable” under Article 7. Ms. Ganer’s challenge failed because the Board’s actions, while contrary to her expectations, were perfectly aligned with the powers the CC&Rs had given it from the start.

This case is a powerful reminder to read the fine print. When was the last time you read your community’s governing documents, and what powers might you be surprised to find your board already has?

Case Participants

Petitioner Side

  • Laura B Ganer (petitioner)
    Appeared on behalf of herself.

Respondent Side

  • Mark B. Sahl (HOA attorney)
    Vincenz Homeowners Association

Neutral Parties

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

Other Participants

  • Nicole Payne (recipient)
    Received transmission of the decision via US Mail.