The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
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20F-H2019033-REL
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This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petitioner's dispute petition was dismissed because the Petitioner failed to meet the burden of proof that the HOA violated its governing documents regarding the denial of a retroactively submitted view fence modification.
Why this result: Petitioner failed to meet the burden of proof to establish the HOA violated its CC&Rs or Design Guidelines. Specifically, the Petitioner did not establish he rightfully sought approval prior to installing the fence.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA violated community documents by denying approval for a glass view fence installed without prior approval. The ALJ found Petitioner failed to establish the HOA violated its documents, as Petitioner did not follow required procedures for seeking approval.
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
Uploaded 2025-10-09T03:34:30 (42.2 KB)
20F-H2019003-REL-RHG Decision – 775433.pdf
Uploaded 2025-10-09T03:34:30 (123.4 KB)
Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019003-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-03-16
Administrative Law Judge
Antara Nath Rivera
Outcome
none
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Will Schreiber
Counsel
Aaron M. Green
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association
Counsel
Mark K. Sahl
Alleged Violations
Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3
Outcome Summary
The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
Uploaded 2026-01-23T17:30:11 (42.2 KB)
20F-H2019003-REL-RHG Decision – 775433.pdf
Uploaded 2026-01-23T17:30:17 (123.4 KB)
Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
Cimarron Hills at McDowell Mountain Homeowners Association
Counsel
Mark K. Sahl
Alleged Violations
Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3
Outcome Summary
The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
The Administrative Law Judge dismissed the petition, finding that the Petitioners failed to establish by a preponderance of the evidence that the Respondent Homeowners Association violated A.R.S. §§ 33-1803, 33-1811, or 33-1817, or any of the cited CC&R provisions concerning intentional construction delay, conflict of interest, or retaliatory fines.
Why this result: Petitioners failed to meet the burden of proof (preponderance of the evidence) on all three issues alleged in the petition.
Key Issues & Findings
Intentional delay of construction
Petitioners alleged that Respondent intentionally delayed the approval and construction of their new home for over eleven months.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1817(B)
CC&R Article 11.2.5
Conflict of interest
Petitioners alleged that a Board Vice President and Secretary (who owned lots adjacent to Petitioners') were blocking approval of the home due to a conflict of interest.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1811
CC&R Article 4.7
Retaliatory fines
Petitioners alleged fear of prospective retaliatory imposition of fines.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1803(B)
CC&R Article 11.3
CC&R Article 12
Analytics Highlights
Topics: HOA, Planned Communities Act, Architectural Review Committee (ARC), Construction Delay, Conflict of Interest, Retaliatory Fines
The Administrative Law Judge dismissed the petition, finding that the Petitioners failed to establish by a preponderance of the evidence that the Respondent Homeowners Association violated A.R.S. §§ 33-1803, 33-1811, or 33-1817, or any of the cited CC&R provisions concerning intentional construction delay, conflict of interest, or retaliatory fines.
Why this result: Petitioners failed to meet the burden of proof (preponderance of the evidence) on all three issues alleged in the petition.
Key Issues & Findings
Intentional delay of construction
Petitioners alleged that Respondent intentionally delayed the approval and construction of their new home for over eleven months.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1817(B)
CC&R Article 11.2.5
Conflict of interest
Petitioners alleged that a Board Vice President and Secretary (who owned lots adjacent to Petitioners') were blocking approval of the home due to a conflict of interest.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1811
CC&R Article 4.7
Retaliatory fines
Petitioners alleged fear of prospective retaliatory imposition of fines.
Orders: Petition dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1803(B)
CC&R Article 11.3
CC&R Article 12
Analytics Highlights
Topics: HOA, Planned Communities Act, Architectural Review Committee (ARC), Construction Delay, Conflict of Interest, Retaliatory Fines
Additional Citations:
A.R.S. § 33-1803
A.R.S. § 33-1803(B)
A.R.S. § 33-1811
A.R.S. § 33-1817
A.R.S. § 33-1817(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R Article 4.7
CC&R Article 11.2.5
CC&R Article 11.3
CC&R Article 12
Video Overview
Audio Overview
Decision Documents
20F-H2019020-REL Decision – 769746.pdf
Uploaded 2026-01-23T17:30:42 (191.2 KB)
Questions
Question
Does a board member have a conflict of interest just because they own a lot next to mine?
Short Answer
No. Owning a neighboring lot does not automatically create a conflict of interest or imply bias.
Detailed Answer
The ALJ reasoned that in planned communities, especially smaller ones, board and committee members will inevitably have to regulate their neighbors. Without evidence of actual animus or discriminatory intent, simply owning a contiguous lot is not a conflict of interest that prevents a member from voting on architectural plans.
Alj Quote
In any homeowners’ association, but especially In a small development having only 71 lots, the persons who volunteer to serve on homeowners’ associations’ boards and ARCs will necessarily be regulating their neighbors.
Legal Basis
A.R.S. § 33-1811
Topic Tags
Conflict of Interest
Board of Directors
Neighbors
Question
Is the Architectural Review Committee (ARC) required to help me design my home to meet the guidelines?
Short Answer
No. The ARC's role is to review submitted plans for compliance, not to assist in the design process.
Detailed Answer
While an ARC might offer guidance, the decision clarifies that their official duty is strictly to review plans against the governing documents. They are not obligated to help owners or builders design compliant structures.
Alj Quote
It is not ARC’s job to help an owner design a home that complies with Respondent’s Guidelines, only to review plans that are submitted for compliance.
Legal Basis
CC&Rs Article 11
Topic Tags
Architectural Review
Design Guidelines
HOA Obligations
Question
Can I file a complaint against my HOA because I am afraid they might fine me in the future?
Short Answer
No. You cannot base a legal complaint on the speculation of future retaliatory fines.
Detailed Answer
The Administrative Law Judge ruled that a petition cannot rely on fear of potential future actions. Unless the HOA has actually assessed a fine or penalty, a claim regarding retaliatory fines is considered speculative and will be dismissed.
Alj Quote
Any prospective prohibition on fines would be based on nothing but speculation. . . . Petitioners have not established that Respondent violated A.R.S. § 33-1803(B) or Articles 11.3 or 12 by assessing retaliatory fines or penalties against Petitioners.
Legal Basis
A.R.S. § 33-1803(B)
Topic Tags
Fines
Retaliation
Dispute Resolution
Question
Who has to prove that the HOA violated the rules in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove that the HOA violated the statutes or CC&Rs. The standard of proof is a 'preponderance of the evidence,' meaning the homeowner must show it is more likely than not that the violation occurred.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
Legal Standards
Burden of Proof
Hearings
Question
Is the HOA responsible for delays if my builder doesn't understand the design guidelines?
Short Answer
No. The HOA is not liable for delays caused by a builder's failure to submit compliant plans.
Detailed Answer
If an HOA's architectural committee is reasonably responsive to submissions, they are not at fault for construction delays resulting from a contractor's misunderstanding of the design rules or failure to meet requirements.
Alj Quote
On this record, it appears that Hoamco and the ARC were reasonably responsive . . . and that any delay in construction appears more likely based on Brilar principal’s imperfect understanding of the Guidelines’ requirements.
Legal Basis
A.R.S. § 33-1817(B)
Topic Tags
Architectural Review
Construction Delays
Vendor Issues
Question
Can I rely on my contractor's timeline estimates for when the HOA will approve my plans?
Short Answer
No. You should rely on the timelines specified in the CC&Rs and statutes, not third-party estimates.
Detailed Answer
The ALJ noted that a homeowner's expectations based on their builder's estimates are not binding on the HOA. The official governing documents determine the procedural timeline, and reliance on outside estimates does not constitute a violation by the HOA.
Alj Quote
Mrs. Holly candidly testified that Petiitoners’ expectations about how long it would take to build their house was based on Brilar’s principles’ estimates, not anything in statutes or Respondent’s CC&Rs . . .
Legal Basis
N/A
Topic Tags
Timelines
Construction
Expectations
Question
Can the HOA charge a fee for reviewing architectural plans?
Short Answer
Yes, if the CC&Rs allow for it.
Detailed Answer
The decision affirms that CC&Rs can grant the Architectural Review Committee the power to assess reasonable fees in connection with the review of plans.
Alj Quote
Article 11.3 of Respondent’s CC&Rs concerns general provisions for the ARC, including that it may assess reasonable fees in connection with its review of plans . . .
Legal Basis
CC&Rs Article 11.3
Topic Tags
Fees
Architectural Review
CC&Rs
Case
Docket No
20F-H2019020-REL
Case Title
Rick and Lisa Holly vs. La Barranca II Homeowners Association
Decision Date
2020-02-14
Alj Name
Diane Mihalsky
Tribunal
OAH
Agency
ADRE
Questions
Question
Does a board member have a conflict of interest just because they own a lot next to mine?
Short Answer
No. Owning a neighboring lot does not automatically create a conflict of interest or imply bias.
Detailed Answer
The ALJ reasoned that in planned communities, especially smaller ones, board and committee members will inevitably have to regulate their neighbors. Without evidence of actual animus or discriminatory intent, simply owning a contiguous lot is not a conflict of interest that prevents a member from voting on architectural plans.
Alj Quote
In any homeowners’ association, but especially In a small development having only 71 lots, the persons who volunteer to serve on homeowners’ associations’ boards and ARCs will necessarily be regulating their neighbors.
Legal Basis
A.R.S. § 33-1811
Topic Tags
Conflict of Interest
Board of Directors
Neighbors
Question
Is the Architectural Review Committee (ARC) required to help me design my home to meet the guidelines?
Short Answer
No. The ARC's role is to review submitted plans for compliance, not to assist in the design process.
Detailed Answer
While an ARC might offer guidance, the decision clarifies that their official duty is strictly to review plans against the governing documents. They are not obligated to help owners or builders design compliant structures.
Alj Quote
It is not ARC’s job to help an owner design a home that complies with Respondent’s Guidelines, only to review plans that are submitted for compliance.
Legal Basis
CC&Rs Article 11
Topic Tags
Architectural Review
Design Guidelines
HOA Obligations
Question
Can I file a complaint against my HOA because I am afraid they might fine me in the future?
Short Answer
No. You cannot base a legal complaint on the speculation of future retaliatory fines.
Detailed Answer
The Administrative Law Judge ruled that a petition cannot rely on fear of potential future actions. Unless the HOA has actually assessed a fine or penalty, a claim regarding retaliatory fines is considered speculative and will be dismissed.
Alj Quote
Any prospective prohibition on fines would be based on nothing but speculation. . . . Petitioners have not established that Respondent violated A.R.S. § 33-1803(B) or Articles 11.3 or 12 by assessing retaliatory fines or penalties against Petitioners.
Legal Basis
A.R.S. § 33-1803(B)
Topic Tags
Fines
Retaliation
Dispute Resolution
Question
Who has to prove that the HOA violated the rules in a hearing?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner filing the petition must prove that the HOA violated the statutes or CC&Rs. The standard of proof is a 'preponderance of the evidence,' meaning the homeowner must show it is more likely than not that the violation occurred.
Alj Quote
Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2)
Topic Tags
Legal Standards
Burden of Proof
Hearings
Question
Is the HOA responsible for delays if my builder doesn't understand the design guidelines?
Short Answer
No. The HOA is not liable for delays caused by a builder's failure to submit compliant plans.
Detailed Answer
If an HOA's architectural committee is reasonably responsive to submissions, they are not at fault for construction delays resulting from a contractor's misunderstanding of the design rules or failure to meet requirements.
Alj Quote
On this record, it appears that Hoamco and the ARC were reasonably responsive . . . and that any delay in construction appears more likely based on Brilar principal’s imperfect understanding of the Guidelines’ requirements.
Legal Basis
A.R.S. § 33-1817(B)
Topic Tags
Architectural Review
Construction Delays
Vendor Issues
Question
Can I rely on my contractor's timeline estimates for when the HOA will approve my plans?
Short Answer
No. You should rely on the timelines specified in the CC&Rs and statutes, not third-party estimates.
Detailed Answer
The ALJ noted that a homeowner's expectations based on their builder's estimates are not binding on the HOA. The official governing documents determine the procedural timeline, and reliance on outside estimates does not constitute a violation by the HOA.
Alj Quote
Mrs. Holly candidly testified that Petiitoners’ expectations about how long it would take to build their house was based on Brilar’s principles’ estimates, not anything in statutes or Respondent’s CC&Rs . . .
Legal Basis
N/A
Topic Tags
Timelines
Construction
Expectations
Question
Can the HOA charge a fee for reviewing architectural plans?
Short Answer
Yes, if the CC&Rs allow for it.
Detailed Answer
The decision affirms that CC&Rs can grant the Architectural Review Committee the power to assess reasonable fees in connection with the review of plans.
Alj Quote
Article 11.3 of Respondent’s CC&Rs concerns general provisions for the ARC, including that it may assess reasonable fees in connection with its review of plans . . .
Legal Basis
CC&Rs Article 11.3
Topic Tags
Fees
Architectural Review
CC&Rs
Case
Docket No
20F-H2019020-REL
Case Title
Rick and Lisa Holly vs. La Barranca II Homeowners Association
Decision Date
2020-02-14
Alj Name
Diane Mihalsky
Tribunal
OAH
Agency
ADRE
Case Participants
Petitioner Side
Rick Holly(petitioner) La Barranca II Homeowners Association Member
Lisa Holly(petitioner) La Barranca II Homeowners Association Member Also referred to as Mrs. Holly
Kevin P. Nelson(petitioner attorney) Tiffany & Bosco
Brian Bracken(witness/contractor's principal) Brilar Homes, LLC Petitioners' general contractor
Larry E. Smith(witness/contractor's principal) Brilar Homes, LLC Petitioners' general contractor
Respondent Side
La Barranca II Homeowners Association(respondent) HOA party
Edward D. O’Brien(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes
Outcome Summary
The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.
Key Issues & Findings
Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.
Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.
Orders: Petitioner’s petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Analytics Highlights
Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:
A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2019014-REL Decision – 766242.pdf
Uploaded 2025-10-09T03:34:33 (48.3 KB)
20F-H2019014-REL Decision – 766243.pdf
Uploaded 2025-10-09T03:34:33 (109.1 KB)
Briefing Doc – 20F-H2019014-REL
Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)
Executive Summary
On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.
The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.
The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.
Case Overview
This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.
Detail
Information
Case Name
Paul L Moffett vs. Vistoso Community Association
Case Number
20F-H2019014-REL
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Petition Filed
On or about September 25, 2019
Hearing Date
December 16, 2019
Decision & Order Date
January 27, 2020
Petitioner
Paul L. Moffett
Petitioner’s Counsel
Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.
Respondent
Vistoso Community Association
Respondent’s Counsel
Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
The Core Dispute: Voter Eligibility and Reduced Assessments
Petitioner’s Allegation
On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.
The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:
• Vistoso Highlands: Owner of 39 lots.
• Pulte: Owner of 168 lots.
Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.
Analysis of Arguments and Key Provisions
The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.
Key Governing Document Provisions
• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”
• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.
Petitioner’s Position (Paul L. Moffett)
The petitioner’s argument was straightforward:
• Vistoso Highlands and Pulte were paying reduced assessments.
• Section 7.3.1 prohibits voting for members who pay reduced assessments.
• Therefore, their votes should not have been counted.
Respondent’s Position (Vistoso Community Association)
The respondent’s argument focused on the precise qualifying language in the CC&Rs:
• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”
• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.
• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.
• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.
Established Findings of Fact
The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.
• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.
• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.
• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.
• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.
• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.
• March 29, 2019: The Board of Directors election was held.
• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”
The Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.
Legal Interpretation
The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.
The decision states:
“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”
The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.
Acknowledgment of Financial Discrepancy
The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”
Final Order
Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.
• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Notice: The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019014-REL
Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)
This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific article and section of the community documents did the Petitioner allege was violated?
3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?
4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?
5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?
6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?
7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?
8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?
9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?
10. What was the final order in this case, and what recourse was available to the parties after the decision?
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Answer Key
1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.
2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.
3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.
4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”
5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.
6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.
7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.
8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.
9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.
10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.
1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.
2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.
3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?
4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.
5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.
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Glossary of Key Terms and Entities
Term / Entity
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.
Article VII, Section 7.3.1
The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”
Article VIII, Section 8.3
The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Declarant
The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.
Developer Owner
An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.
Homeowners Association (HOA) Dispute Process Petition
The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.
Office of Administrative Hearings (OAH)
The state office where the formal hearing for this case was conducted before an Administrative Law Judge.
Petitioner
The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.
Respondent
The party against whom a petition is filed. In this case, the Vistoso Community Association.
Blog Post – 20F-H2019014-REL
The Legal Loophole That Flipped an HOA Election on Its Head
For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.
This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.
The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote
The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.
The community’s governing documents contained two key sections:
• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.
• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.
On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.
The Smoking Gun: Developers Were Underpaying for Years
The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.
• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.
• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.
However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.
The Twist: A Single Phrase Created a Mind-Bending Loophole
This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”
The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.
In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.
The ALJ summarized this stunning conclusion in the final decision:
Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.
The Verdict: A Financial Problem Doesn’t Invalidate a Vote
Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.
The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).
While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.
This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.
Conclusion: The Devil is Always in the Details
This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.
The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.
Case Participants
Petitioner Side
Paul L Moffett(petitioner) Appeared at hearing and testified on his own behalf
Richard M. Rollman(petitioner attorney) Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette(legal staff) Gabroy, Rollman & Bosse, P.C. Listed below Petitioner's attorney on service list
Respondent Side
Jason E. Smith(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly(witness) Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC Recipient of Order
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of Order
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Order
djones(ADRE staff) Arizona Department of Real Estate Recipient of Order
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of Order
ncano(ADRE staff) Arizona Department of Real Estate Recipient of Order
Other Participants
Sarah Nelson(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Patrick Straney(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Dennis Ottley(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes
Outcome Summary
The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.
Key Issues & Findings
Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.
Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.
Orders: Petitioner’s petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
Analytics Highlights
Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:
A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2019014-REL Decision – 766242.pdf
Uploaded 2026-01-23T17:30:28 (48.3 KB)
20F-H2019014-REL Decision – 766243.pdf
Uploaded 2026-01-23T17:30:31 (109.1 KB)
Briefing Doc – 20F-H2019014-REL
Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)
Executive Summary
On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.
The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.
The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.
Case Overview
This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.
Detail
Information
Case Name
Paul L Moffett vs. Vistoso Community Association
Case Number
20F-H2019014-REL
Adjudicating Body
Arizona Office of Administrative Hearings
Administrative Law Judge
Tammy L. Eigenheer
Petition Filed
On or about September 25, 2019
Hearing Date
December 16, 2019
Decision & Order Date
January 27, 2020
Petitioner
Paul L. Moffett
Petitioner’s Counsel
Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.
Respondent
Vistoso Community Association
Respondent’s Counsel
Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
The Core Dispute: Voter Eligibility and Reduced Assessments
Petitioner’s Allegation
On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.
The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:
• Vistoso Highlands: Owner of 39 lots.
• Pulte: Owner of 168 lots.
Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.
Analysis of Arguments and Key Provisions
The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.
Key Governing Document Provisions
• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”
• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.
Petitioner’s Position (Paul L. Moffett)
The petitioner’s argument was straightforward:
• Vistoso Highlands and Pulte were paying reduced assessments.
• Section 7.3.1 prohibits voting for members who pay reduced assessments.
• Therefore, their votes should not have been counted.
Respondent’s Position (Vistoso Community Association)
The respondent’s argument focused on the precise qualifying language in the CC&Rs:
• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”
• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.
• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.
• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.
Established Findings of Fact
The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.
• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.
• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.
• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.
• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.
• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.
• March 29, 2019: The Board of Directors election was held.
• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”
The Administrative Law Judge’s Decision and Rationale
The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.
Legal Interpretation
The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.
The decision states:
“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”
The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.
Acknowledgment of Financial Discrepancy
The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”
Final Order
Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.
• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”
• Notice: The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2019014-REL
Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)
This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific article and section of the community documents did the Petitioner allege was violated?
3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?
4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?
5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?
6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?
7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?
8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?
9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?
10. What was the final order in this case, and what recourse was available to the parties after the decision?
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Answer Key
1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.
2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.
3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.
4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”
5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.
6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.
7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.
8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.
9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.
10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.
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Essay Questions
Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.
1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.
2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.
3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?
4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.
5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.
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Glossary of Key Terms and Entities
Term / Entity
Definition
Administrative Law Judge (ALJ)
An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.
Arizona Department of Real Estate (Department)
The state agency with which the Petitioner filed the initial Homeowners Association (HOA) Dispute Process Petition.
Article VII, Section 7.3.1
The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”
Article VIII, Section 8.3
The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.
Burden of Proof
The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof.
Declarant
The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.
Developer Owner
An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.
Homeowners Association (HOA) Dispute Process Petition
The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.
Office of Administrative Hearings (OAH)
The state office where the formal hearing for this case was conducted before an Administrative Law Judge.
Petitioner
The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side over the other.
Respondent
The party against whom a petition is filed. In this case, the Vistoso Community Association.
Blog Post – 20F-H2019014-REL
The Legal Loophole That Flipped an HOA Election on Its Head
For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.
This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.
The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote
The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.
The community’s governing documents contained two key sections:
• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.
• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.
On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.
The Smoking Gun: Developers Were Underpaying for Years
The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.
• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.
• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.
However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.
The Twist: A Single Phrase Created a Mind-Bending Loophole
This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”
The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.
In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.
The ALJ summarized this stunning conclusion in the final decision:
Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.
The Verdict: A Financial Problem Doesn’t Invalidate a Vote
Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.
The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).
While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.
This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.
Conclusion: The Devil is Always in the Details
This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.
The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.
Case Participants
Petitioner Side
Paul L Moffett(petitioner) Appeared at hearing and testified on his own behalf
Richard M. Rollman(petitioner attorney) Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette(legal staff) Gabroy, Rollman & Bosse, P.C. Listed below Petitioner's attorney on service list
Respondent Side
Jason E. Smith(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly(witness) Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan(respondent attorney) CARPENTER HAZLEWOOD DELGADO & WOOD, PLC Recipient of Order
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of Order
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of Order
djones(ADRE staff) Arizona Department of Real Estate Recipient of Order
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of Order
ncano(ADRE staff) Arizona Department of Real Estate Recipient of Order
Other Participants
Sarah Nelson(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Patrick Straney(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Dennis Ottley(board member (elected)) Vistoso Community Association Recipient of votes in disputed election
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1919053-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-11-18
Administrative Law Judge
Diane Mihalsky
Outcome
none
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joyce H Monsanto
Counsel
—
Respondent
Four Seasons at the Manor Homeowners Association
Counsel
Mark K. Sahl, Esq.
Alleged Violations
A.R.S. § 33-1808; CC&R § 7.9
Outcome Summary
The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.
Why this result: The Petitioner failed to meet her burden of proof on both statutory and CC&R violations,.
Key Issues & Findings
HOA's denial of application to install two flagpoles for US and military flags, and alleged failure to follow CC&R appeal process.
Petitioner challenged the HOA's denial of her request to install two flagpoles, arguing the restriction violated A.R.S. § 33-1808 (flag statute) and that the Board failed to provide a written decision on her appeal within 45 days as required by CC&R § 7.9, which she argued meant the request was deemed approved. The ALJ found the single flagpole restriction reasonable under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and determined the Board satisfied the CC&R § 7.9 requirement by posting the decision in the meeting minutes within 45 days,.
Orders: Petitioner's petition is denied, as she failed to establish that the Respondent's Board should not have denied her application under A.R.S. § 33-1808 or CC&R § 7. The Board can properly find Petitioner in violation of Architectural Guidelines and order her to remove one of her two flagpoles.
Briefing Document: Monsanto v. Four Seasons at the Manor HOA
Executive Summary
This document synthesizes the findings and legal reasoning from the Amended Administrative Law Judge Decision in the case of Joyce H. Monsanto versus the Four Seasons at the Manor Homeowners Association (HOA). The central conflict revolves around the HOA’s denial of Ms. Monsanto’s request to install two separate flagpoles on her home to display the United States flag and the United States Marine Corps flag. The petitioner alleged this denial violated Arizona state law and the HOA’s own governing documents.
The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision established two critical points: first, that the HOA’s rule limiting homeowners to a single flagpole is a “reasonable” regulation on the “placement and manner of display” explicitly permitted under Arizona statute A.R.S. § 33-1808(B), and does not constitute a prohibition of flag display. Second, the HOA was found to have complied with its own appeal process as outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ concluded that an oral denial at a board meeting, later documented in publicly posted meeting minutes, satisfied the CC&R’s requirement to “render its written decision” within a 45-day timeframe. The ruling affirms an HOA’s authority to enforce uniform aesthetic standards, provided they are reasonable and applied according to the association’s governing documents.
Case Background and Procedural History
The case was brought before the Arizona Office of Administrative Hearings (OAH) following a petition filed by homeowner Joyce H. Monsanto (“Petitioner”) against her HOA, Four Seasons at the Manor Homeowners Association (“Respondent”).
• Initial Petition: On March 6, 2019, the Petitioner filed a petition with the Arizona Department of Real Estate, alleging the HOA violated state law (A.R.S. § 33-1803) and its CC&Rs (§ 7.9) by refusing to approve her request for two flagpoles.
• First Hearing: An evidentiary hearing was held on May 30, 2019, after which the ALJ found that the Petitioner had not proven any violation by the HOA.
• Rehearing: The Commissioner of the Department of Real Estate granted the Petitioner’s request for a rehearing on August 22, 2019. This rehearing took place on October 21, 2019.
• Amended Decision: On November 18, 2019, ALJ Diane Mihalsky issued an Amended Administrative Law Judge Decision, again denying the Petitioner’s petition and affirming the previous findings. The amendment was issued to correct a typographical error and clarify the parties’ appeal rights.
The Core Dispute: A Request for Two Flagpoles
The petitioner, whose husband and two sons have long careers in the U.S. Marines and Coast Guard, sought to display both the U.S. flag and the U.S. Marine Corps flag on her home.
• The Application: On August 31, 2018, she submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house, flanking her front door.
• The Rationale: The Petitioner stated her desire for two separate poles was for aesthetic reasons, believing the display would look better. She also expressed concern that a single, larger flagpole installed in her front yard would obstruct the view from her front window.
• The Denial: On September 22, 2018, the HOA’s Architectural Committee issued a written Notice of Disapproval, citing the Architectural Guidelines which permit only one flagpole per lot.
• The Appeal: On October 1, 2018, the Petitioner submitted a written appeal to the HOA Board, arguing the denial was unreasonable, that the guidelines were not uniformly enforced, and that the board could grant a waiver under CC&R § 7.6.
Governing Rules and Statutes
The case decision rested on the interpretation of Arizona state law and the HOA’s specific governing documents.
Arizona Revised Statute § 33-1808
This statute governs the right of homeowners to display certain flags.
• Protection of Display: Subsection A states that an association “shall not prohibit the outdoor… display” of the American flag or a military flag, among others.
• Right to Regulate: Subsection B grants associations the authority to “adopt reasonable rules and regulations regarding the placement and manner of display.” It explicitly allows rules that “regulate the location and size of flagpoles,” “limit the member to displaying no more than two flags at once,” and limit flagpole height, while not prohibiting their installation.
HOA Architectural Guidelines
The community’s rules regarding flagpoles evolved but consistently maintained a key restriction.
• Original Guideline (May 24, 2016): “Poles must not exceed 12’ in height, and only one flagpole is permitted per Lot.”
• Amended Guideline (November 8, 2018): The board increased the maximum pole height to 20′ and added rules for nighttime illumination and inclement weather, but explicitly “did not change the limit of one flagpole per lot.”
HOA CC&Rs (Covenants, Conditions, and Restrictions)
The procedural requirements for architectural review and appeals were central to the Petitioner’s claim.
• Section 7.8 (Board Approval): Pertaining to initial applications, this section requires the Board to provide the owner with a “written response within sixty (60) days,” otherwise the request is deemed approved.
• Section 7.9 (Appeal): Pertaining to appeals, this section requires the Board to consult with the Architectural Committee and “render its written decision” within 45 days. A failure by the Board to render a decision in this period “shall be deemed approval.” This section does not contain the same explicit language as § 7.8 requiring the response be provided to the owner.
Analysis of the Appeal Process and Conflicting Testimonies
A significant portion of the dispute centered on the events of the November 8, 2018, HOA Board meeting, where the Petitioner’s appeal was to be considered. The accounts of what transpired at this meeting were contradictory.
The board did not consult the Architectural Committee.
The board consulted with the Architectural Committee before the meeting.
Decision
The board did not consider or make any decision on her appeal.
The board considered the appeal and made a decision.
Notification
She was never told her appeal was denied at the meeting.
He was certain the board verbally informed the Petitioner that her appeal was denied at the meeting.
On December 4, 2018, draft minutes from the November 8 meeting were posted on the HOA’s website. The Petitioner acknowledged seeing them. These minutes included the following entry:
“[Petitioner’s] last request was for a waiver that would allow her to have two flagpoles on her property (one to fly the American flag and the other to fly the Marine flag). The Board rejected this request since our CC&Rs allow for the flying of both flags on a single flagpole.”
The Petitioner argued that these publicly posted draft minutes, which were not sent directly to her, did not constitute a valid written denial of her appeal under the CC&Rs.
Administrative Law Judge’s Decision and Rationale
The ALJ’s decision methodically rejected each of the Petitioner’s claims, relying on witness credibility, statutory interpretation, and contract construction principles.
Credibility Assessment
The ALJ made a clear determination on the conflicting testimonies regarding the November 8 meeting.
• Mr. Nunziato’s testimony that the board made a decision and informed the Petitioner was found to be “credible and supported by the minutes of the meeting.”
• The Petitioner’s testimony that the board made no decision on her appeal was deemed “incredible.”
Ruling on A.R.S. § 33-1808 (State Flag Law)
The ALJ concluded that the HOA’s one-flagpole rule did not violate state law.
• The rule was found to be a “reasonable rule or regulation under A.R.S. § 33-1808(B).”
• Because the Architectural Guidelines allow for flying two flags from a single flagpole up to 20′ long, the HOA was not prohibiting the display of flags, merely regulating the manner.
• The ALJ characterized the core issue as the “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.”
Ruling on CC&R § 7.9 (Appeal Process)
The ALJ found that the HOA had followed the procedure required by its own CC&Rs.
• Consultation: Based on Mr. Nunziato’s credible testimony, the board fulfilled its duty to consult with the Architectural Committee.
• “Render a Decision”: The board “rendered a decision on her appeal at the November 8, 2018 board meeting” when it orally reached a decision.
• “Written Decision”: The board created a “writing memorializing its decision” by documenting it in the meeting minutes. Because the Petitioner saw these minutes on December 4, 2018, this action occurred within the 45-day window following her October 1, 2018 appeal.
• No Delivery Requirement: The ALJ applied the “negative implication cannon of contract construction.” By comparing CC&R § 7.9 (appeals) with § 7.8 (initial applications), the judge noted that § 7.9 lacks the explicit requirement to provide the written decision to the owner. Therefore, posting the minutes was sufficient, and the Petitioner’s request was not “deemed approved.”
Final Order
Based on these findings, the ALJ issued a final, binding order.
IT IS ORDERED that the Petitioners’ petition is denied because she has not established that the Respondent’s Board should not have denied her application to install two flagpoles on her property.
The decision concludes with a notice informing the parties that the order is binding and that any appeal must be filed with the superior court within 35 days from the date of service.
Study Guide – 19F-H1919053-REL-RHG
Study Guide: Monsanto v. Four Seasons at the Manor HOA
This study guide provides a detailed review of the legal case Joyce H. Monsanto v. Four Seasons at the Manor Homeowners Association, Case No. 19F-H1919053-REL-RHG, as detailed in the Amended Administrative Law Judge Decision dated November 18, 2019. The guide includes a short-answer quiz, a corresponding answer key, suggested essay questions, and a comprehensive glossary of terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based entirely on the information provided in the case document.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner request from the Respondent that initiated this dispute?
3. On what grounds did the Respondent’s Architectural Committee initially deny the Petitioner’s request on September 22, 2018?
4. Identify the key Arizona statute cited in the case and explain its two main provisions regarding flag displays.
5. What was the Petitioner’s primary argument regarding the Respondent’s handling of her appeal under CC&R § 7.9?
6. According to the testimony of Board President Tony Nunziato, how did the Board address the Petitioner’s appeal at the November 8, 2018 meeting?
7. What documentary evidence did the Respondent use to support the claim that a decision on the appeal was made and written down within the required timeframe?
8. Why did the Administrative Law Judge (ALJ) find the Respondent’s one-flagpole rule to be legally permissible?
9. What is the legal standard of proof required for the Petitioner in this case, and did she meet it according to the ALJ?
10. What was the final order issued by the Administrative Law Judge in this case and its practical consequence for the Petitioner?
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Answer Key
1. The Petitioner is Joyce H. Monsanto, a homeowner. The Respondent is the Four Seasons at the Manor Homeowners Association (HOA). Ms. Monsanto is a member of the Respondent HOA because she owns a house within its development in Sun City, Arizona.
2. The Petitioner submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house. She intended to fly the United States flag from one pole and the United States Marine Corps flag from the other.
3. The Architectural Committee denied the request because the community’s Architectural Guidelines only permitted one flagpole per lot. The written Notice of Disapproval explicitly stated this rule as the reason for the denial.
4. The key statute is A.R.S. § 33-1808. Its first provision, § 33-1808(A), prohibits an HOA from banning the display of the American flag and various military flags. The second provision, § 33-1808(B), allows an HOA to adopt reasonable rules regulating the placement, size, and number of flagpoles, explicitly permitting a limit of one flagpole per property.
5. The Petitioner argued that the Board violated CC&R § 7.9 because it failed to provide her with a formal written decision denying her appeal within the 45-day period. She contended that because she never received a dedicated letter, the request should have been “deemed approved” as stipulated in the CC&R for failure to render a timely decision.
6. Tony Nunziato testified that the Board did consult with the Architectural Committee regarding the appeal before the meeting. He stated with certainty that at the November 8, 2018 meeting, the Board considered the appeal and verbally informed Ms. Monsanto that her request for a waiver was denied.
7. The Respondent presented the draft minutes from the November 8, 2018 Board meeting, which were posted on the HOA’s website on December 4, 2018. These minutes explicitly stated that the Board rejected the Petitioner’s request for a waiver to have two flagpoles, fulfilling the requirement to have a written record of the decision within 45 days of her October 1 appeal.
8. The ALJ found the rule permissible because A.R.S. § 33-1808(B) explicitly grants HOAs the authority to “adopt reasonable rules and regulations” which may “regulate the location and size of flagpoles” and “shall not prohibit the installation of a flagpole.” Since the HOA’s guidelines allowed for one flagpole up to 20 feet long, capable of flying two flags, the judge concluded the rule was reasonable under the statute.
9. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that her contention was more probably true than not. The ALJ concluded that the Petitioner did not meet this burden of proof to establish that the Respondent violated any statute or its own CC&Rs.
10. The final order denied the Petitioner’s petition. The practical consequence is that the HOA’s denial of her application for two flagpoles was upheld, and the Board could therefore properly find her in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.
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Suggested Essay Questions
1. Analyze the conflict between A.R.S. § 33-1808(A), which protects a homeowner’s right to display military flags, and § 33-1808(B), which grants HOAs regulatory power. How did the Administrative Law Judge balance these two provisions to reach a conclusion in this case?
2. Discuss the concept of “burden of proof” as it applied to the Petitioner. Detail the specific claims made by Joyce Monsanto and explain why, according to the legal decision, she failed to establish them by a “preponderance of the evidence.”
3. Examine the procedural dispute surrounding CC&R § 7.9. Contrast the Petitioner’s interpretation of a “written decision” with the interpretation ultimately adopted by the Administrative Law Judge, referencing the role of the verbal notification and the meeting minutes.
4. Evaluate the role of testimony and credibility in this administrative hearing. Compare and contrast the testimony provided by Petitioner Joyce Monsanto and Respondent’s Board President Tony Nunziato regarding the events of the November 8, 2018 board meeting, and explain why the judge found Mr. Nunziato’s account more credible.
5. Based on the facts presented, construct an argument that the HOA’s actions, while legally permissible according to the judge, were inconsistent with the patriotic values of its community, which includes many retired military members. Conversely, construct an argument defending the Board’s decision as a necessary and fair application of rules essential for maintaining community standards.
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Glossary of Key Terms
Definition in Context
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, Diane Mihalsky served as the ALJ for the Office of Administrative Hearings.
A.R.S. § 33-1808
An Arizona Revised Statute that governs the display of flags in planned communities. It forbids HOAs from prohibiting certain flags (like the U.S. and military flags) but permits them to establish reasonable rules regarding the number, size, and location of flagpoles.
Architectural Committee
A committee established by the HOA’s CC&Rs responsible for reviewing and approving or disapproving homeowners’ applications for external modifications to their property, such as installing flagpoles.
Architectural Guidelines
The specific rules adopted by the HOA that set forth requirements for property modifications. In this case, the guidelines limited each lot to one flagpole, with a maximum height of 20 feet.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. The Petitioner, Joyce Monsanto, bore the burden of proof to show the HOA had violated the law or its own rules.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that create the rules for a planned community. The Petitioner alleged the Respondent violated CC&R § 7.9, which outlines the appeal process for disapproved architectural applications.
Declarant
The original developer of a planned community who establishes the initial CC&Rs. In this case, K. Hovnanian was the Declarant for Four Seasons at the Manor.
Homeowners’ Association (HOA)
The governing organization in a planned community responsible for enforcing the CC&Rs and managing common areas. The Respondent, Four Seasons at the Manor Homeowners Association, is an HOA.
Negative Implication
A principle of legal interpretation which holds that the explicit inclusion of one thing implies the intentional exclusion of another. The ALJ used this to argue that because CC&R § 7.9 (appeals) does not specify that a written decision must be sent to the owner, unlike CC&R § 7.8 (initial applications), that requirement should not be read into the appeal rule.
Office of Administrative Hearings (OAH)
An independent Arizona state agency that conducts evidentiary hearings for other state agencies, providing an impartial forum to resolve disputes.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Joyce H. Monsanto is the Petitioner.
Preponderance of the Evidence
The evidentiary standard required in this civil case. It is defined as proof that convinces the trier of fact (the judge) that a contention is “more probably true than not.”
Respondent
The party against whom a petition is filed. In this case, the Four Seasons at the Manor Homeowners Association is the Respondent.
Restrictive Covenant
A legally enforceable rule within the CC&Rs that limits what a homeowner can do with their property. The rule limiting homes to one flagpole is an example of a restrictive covenant.
Waiver
The act of intentionally relinquishing a known right or claim. The Petitioner argued that the HOA board could, and should, have waived the one-flagpole rule for her under CC&R § 7.6.
Blog Post – 19F-H1919053-REL-RHG
HOA vs. Military Family: 4 Lessons from a Legal Battle Over a Flagpole
For Joyce Monsanto, a member of a dedicated military family, displaying her patriotism was a matter of pride. Her husband served 25 years in the Marines, and her two sons have spent decades in the Marines and the Coast Guard. Naturally, she wanted to fly both the flag of the United States and the flag of the U.S. Marine Corps at her Arizona home. But when she submitted her plan to her Homeowners Association (HOA), she was met with a firm “no.”
The conflict wasn’t about the flags themselves. The Four Seasons at the Manor HOA had no issue with her displaying both. The dispute centered on how she wanted to display them. It was a disagreement over her vision for a symmetrical, two-pole display versus the HOA’s “one flagpole per lot” rule. This architectural dispute escalated from a simple request into a formal administrative hearing.
Ms. Monsanto’s fight reveals several surprising truths about the power of HOA rules and the specific language written into state law. Her case ultimately failed on two fronts—a substantive challenge to the rule itself, and a procedural challenge to how the HOA handled her appeal. Here’s what every homeowner can learn from each.
1. Your Right to Fly the Flag Has Limits—And They’re Written into Law.
Many homeowners believe the right to fly the American flag is unconditional. However, the legal reality is more nuanced. While Arizona law (A.R.S. § 33-1808) prevents an HOA from outright prohibiting the display of U.S. or military flags, it explicitly allows the association to create “reasonable rules and regulations” for their placement and manner of display.
The statute is specific about what these rules can cover. An HOA can legally regulate the size and location of flagpoles and can limit a homeowner to displaying no more than two flags at once. In this case, the HOA’s architectural guidelines permitted two flags, but only on a single flagpole. The Administrative Law Judge found this “one flagpole per lot” rule was a “reasonable” regulation and therefore perfectly legal. To underscore that the HOA’s stance was not about a lack of patriotism, the judge noted testimony that the HOA president himself “placed 140 small flags on his property” for Memorial Day. The issue was about the uniform enforcement of an architectural rule, not the patriotic display itself.
2. Your Personal Taste Is No Match for the Community Rulebook.
During the hearing, Ms. Monsanto acknowledged that she could fly both of her flags from a single pole as the HOA rules allowed. Her reason for wanting two poles was a matter of personal preference. She testified that she “wanted to install two flagpoles for aesthetic reasons” and also felt that a single pole placed in the middle of her lot would block the view from her front window.
The judge was unmoved by this line of reasoning. In the final decision, the response was direct and unambiguous:
Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.
This is a foundational principle of community association law: homeowners trade a degree of personal autonomy for the perceived benefits of uniform standards and predictable property values. The judge’s decision simply reaffirms that bargain. In the world of planned communities, the established rulebook will almost always outweigh an individual’s personal taste.
3. In HOA Law, the Appeal Isn’t a Re-do—It’s a Different Process.
One of Ms. Monsanto’s key arguments was procedural. She believed her appeal should have been automatically approved because the HOA failed to provide a written decision within the 45-day deadline stipulated in its own rules (CC&R § 7.9). This is where the judge identified a subtle but crucial legal distinction buried in the HOA’s governing documents.
The HOA’s CC&Rs had two different sections for architectural requests:
• CC&R § 7.8 (Initial Requests): This section explicitly required the Board to “inform the submitting party of the final decision” with a “written response.”
• CC&R § 7.9 (Appeals): This section, however, only required the Board to “render its written decision” within 45 days.
That small difference in wording—”written response” versus “written decision”—was the linchpin of her procedural case. The judge ruled that for an appeal, the HOA was not required to send a personal letter or direct notice to Ms. Monsanto. It only had to create a written record of its decision within the timeframe.
4. A Post on an HOA Website Can Count as an Official “Written Decision.”
The final surprise came down to what constitutes a “written decision” and how the deadline was met. Ms. Monsanto was waiting for a formal letter informing her that her appeal had been denied. She never received one. Her appeal was filed on October 1, 2018, starting a 45-day clock.
The judge found the HOA satisfied its obligation in a two-step process:
1. The Decision: The Board verbally denied her appeal during its public meeting on November 8, 2018. This action, which occurred 38 days after her appeal, fulfilled the requirement to “render its decision” within the 45-day period.
2. The Writing: That decision was then recorded in the draft meeting minutes, which were posted on the Board’s website on December 4, 2018. Ms. Monsanto acknowledged seeing the posted minutes.
The judge ruled that these online minutes satisfied the separate legal requirement for a “writing memorializing its decision.” Even though they weren’t sent directly to her, the publicly posted minutes served as the official record of the timely denial of her appeal, closing the final door on her argument for automatic approval.
Conclusion: Before You Plant Your Flag, Read the Fine Print
Joyce Monsanto’s case is a cautionary tale on two levels. First, it shows that even cherished rights like displaying the flag are subject to reasonable, neutrally-applied community rules. Second, and more critically, it demonstrates that procedural arguments live and die by the most precise definitions in the governing documents. A single word can be the difference between winning an appeal and being ordered to take your flagpole down.
This case came down to the difference between a “written response” and a “written decision”—do you know what the fine print says about your rights in your community?
Case Participants
Petitioner Side
Joyce H Monsanto(petitioner) Appeared on her own behalf
Respondent Side
Mark K. Sahl(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
Anthony Nunziato(board member) Four Seasons at the Manor Homeowners Association President of the Board of Directors; also referred to as 'Tony'
Annette McCraw(property manager) Community Manager/Trestle Management (implied) Sent Notice of Disapproval on behalf of Respondent
Marc Vasquez(HOA representative) Addressed Petitioner's claim regarding violation letters at the Board meeting
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
