Tag Archives: A.R.S. § 32-2199.01

Ronna Biesecker, v. 6100 Fifth Condominium Homeowners Association,

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Case Summary

Case ID 20F-H2020050-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-06-25
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Ronna Biesecker Counsel —
Respondent 6100 Fifth Condominium Homeowners Association Counsel —

Alleged Violations

A.R.S. § 33-1247 and CC&Rs § 10(c)

Outcome Summary

The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs or Arizona statutes; therefore, the petition was dismissed.

Why this result: Petitioner failed to meet the burden of proof, as evidence suggested the water leak was caused by the sliding glass door of the unit above, not a flaw in the common elements.

Key Issues & Findings

Failure to maintain all Common Elements (Water Leak Dispute)

Petitioner alleged the Respondent HOA failed to maintain Common Elements, leading to water leaks in her unit. Respondent denied the violation, asserting the leak originated from the upstairs unit’s sliding doors or track assemblies, which are the responsibility of that unit owner.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1247
  • CC&Rs § 10(c)
  • Article II.E, Section 1 of the Bylaws
  • Article C of the CC&Rs

Analytics Highlights

Topics: condominium, maintenance dispute, common elements, water damage, burden of proof
Additional Citations:

  • A.R.S. § 33-1247
  • CC&Rs § 10(c)
  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
  • Vazanno v. Superior Court

Video Overview

Audio Overview

Decision Documents

20F-H2020050-REL Decision – 802352.pdf

Uploaded 2025-10-09T03:35:05 (103.2 KB)





Briefing Doc – 20F-H2020050-REL


Administrative Hearing Brief: Biesecker v. 6100 Fifth Condominium HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 20F-H2020050-REL, wherein Petitioner Ronna Biesecker alleged that the 6100 Fifth Condominium Homeowners Association (HOA) failed to fulfill its maintenance responsibilities. The Administrative Law Judge (ALJ) ultimately dismissed the petition, ruling that the Petitioner did not meet the burden of proof required to substantiate her claim.

The central conflict involved recurring water leaks in Ms. Biesecker’s condominium unit (A113). The Petitioner contended that the leaks originated from cracks in the building’s exterior stucco, which are defined as “Common Elements” and are therefore the HOA’s responsibility to repair under its governing documents and Arizona state law. In contrast, the HOA argued that the source of the water was the sliding door assembly of the upstairs unit, making its maintenance the responsibility of that unit’s owner.

The final decision rested on the weight of evidence presented. Multiple expert inspections, conducted by Olander’s and another inspector retained by the HOA, concluded that the leaks were attributable to the upstairs unit’s sliding doors. This evidence was deemed more convincing than the Petitioner’s own assessment regarding the stucco. The ALJ concluded that Ms. Biesecker failed to prove by a “preponderance of the evidence” that the damage was caused by a flaw in the common elements, leading to the dismissal of her case.

Case Overview

Case Name

Ronna Biesecker, Petitioner, vs. 6100 Fifth Condominium Homeowners Association, Respondent.

Case Number

20F-H2020050-REL

Office of Administrative Hearings (Arizona)

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

June 5, 2020

Decision Date

June 25, 2020

Petitioner

Ronna Biesecker, owner of unit A113

Respondent

6100 Fifth Condominium Homeowners Association, represented by Robert Eric Struse, Statutory Agent

Core Allegations and Defenses

Petitioner’s Claim (Ronna Biesecker)

• Core Allegation: The Petitioner filed a petition on March 10, 2020, alleging that the Respondent (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) § 10(c) and Arizona Revised Statutes (A.R.S.) § 33-1247 by failing to maintain the common elements of the condominium community.

• Specifics of Claim: Ms. Biesecker asserted that persistent water leaks into her unit were caused by cracks in the exterior stucco surrounding the sliding doors.

• Basis of Responsibility: She argued that because the exterior stucco is a “common element,” the HOA was legally responsible for its repair and any subsequent damage to her unit.

• Requested Action: The Petitioner had previously requested that the HOA repair the exterior leaks and had attempted to have the HOA mediate the issue with the owner of the upstairs unit.

Respondent’s Position (6100 Fifth Condominium HOA)

• Core Defense: The HOA denied any violation of its CC&Rs or state statutes.

• Specifics of Defense: The HOA maintained that the source of the water leaks was not a common element. Instead, it attributed the leaks to the sliding doors or track assemblies of the condominium unit located directly above the Petitioner’s.

• Basis of Responsibility: According to the HOA’s governing documents and state law, the maintenance of elements belonging to an individual unit (such as a sliding door) is the responsibility of that unit’s owner, not the association.

• Actions Taken: The HOA declined to “arbitrate, mediate, or serve as a third party” in the dispute between the Petitioner and the owner of the upstairs unit. It also conducted an inspection which supported its position.

Evidentiary Timeline and Key Findings

The decision was based on a sequence of events and expert assessments presented as evidence.

• January 5, 2019: Petitioner experiences the first water leak in her unit (A113) near the sliding glass door.

• January 18, 2019: An employee from Olander’s, a door installation company contacted by the Petitioner, inspects the unit. The employee’s opinion was that “the leak was coming from the unit above Petitioner and that the sliding door above Petitioner’s unit had large gaps under the threshold which allowed water to get in.”

• February 8, 2019: Nathan’s Handyman Service repairs plaster damage in the Petitioner’s unit and notes in a report that the damage was “the result of an old leak coming from above Petitioner’s unit.” The report also identified rusted wire mesh, indicating previous repairs to the area.

• March/April 2019: The HOA’s Property Manager formally refuses the Petitioner’s request to mediate the dispute with the owner of the upstairs unit.

• May 1, 2019: Petitioner emails the HOA, proposing that new cracks in the stucco pop-out at the roof level could be the source of the leak.

• October 28, 2019: A “Roof Opinion Report” from Roof Savers Locke Roofing states that no roof repairs are needed but notes the presence of “server [sic] cracking at the stucco.” The report recommends contacting a stucco or window contractor.

• November 27, 2019: Another leak occurs in the same area of the Petitioner’s unit.

• December 9, 2019: The HOA’s Property Manager and an inspector assess the water damage in the Petitioner’s unit.

• December 23, 2019: An invoice from the inspector states: “After inspecting the shared roof and building interior/exterior it appears the water damage to the lower unit is coming from the upstairs unit sliding doors or their track assemblies.”

• June 5, 2020 (Hearing Testimony):

◦ The Petitioner stated it was “obvious” the leak originated from the stucco crack.

◦ The HOA’s Statutory Agent, Robert Eric Struse, testified that the December 2019 inspection included the interior of the upstairs unit. He argued that if the stucco crack were the cause, the upstairs unit would also show internal water damage, which it did not.

Governing Documents and Statutes

The case revolved around the interpretation of responsibility as defined by the following legal framework:

• Bylaws (Article II.E, Section 1) & CC&Rs (Article C): These documents obligate the HOA to collect assessments to meet common expenses, including the “maintenance, upkeep, care, repair, [and] reconstruction… for the common elements.”

• A.R.S. § 33-1247: This Arizona statute codifies the division of maintenance responsibility. It states that “the association is responsible for maintenance, repair and replacement of the common elements and each unit owner is responsible for maintenance, repair and replacement of the unit.”

Conclusions of Law and Final Order

The Administrative Law Judge’s decision was based on the application of the legal standard of proof to the evidence presented.

• Burden of Proof: The ALJ established that the Petitioner bore the burden of proof to demonstrate, by a “preponderance of the evidence,” that the HOA violated the applicable statutes or CC&Rs. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

• Central Legal Finding: The judge determined that if the water damage was caused by a flaw in the common elements, the HOA would be responsible. However, the Petitioner failed to meet her burden of proof in establishing this causal link.

• Reasoning for Decision: The ruling states: “Petitioner failed to establish by a preponderance of the evidence that the water leak and damage was attributable to the condition of the common elements. Rather, the opinions of the companies that inspected the area concluded that the leak was coming from the sliding glass door of the unit above Petitioner’s.” The collective weight of the expert opinions from Olander’s and the HOA’s inspector outweighed the Petitioner’s personal theory about the stucco cracks.

• Final Order: Based on these findings, the judge issued a final order: “IT IS ORDERED that Petitioner’s petition is dismissed.” This order is binding unless a rehearing is granted.






Study Guide – 20F-H2020050-REL


Study Guide: Biesecker v. 6100 Fifth Condominium Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 20F-H2020050-REL, concerning a dispute between condominium owner Ronna Biesecker and the 6100 Fifth Condominium Homeowners Association. The case centers on determining responsibility for water leaks affecting the Petitioner’s unit. Use the following sections to test and deepen your understanding of the facts, legal arguments, and final outcome.

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Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, using only information provided in the case document.

1. Who were the Petitioner and Respondent in this case, and what was their relationship?

2. What was the central claim made by the Petitioner against the Respondent?

3. According to the Respondent, what was the source of the water leaks and who was responsible for the repair?

4. What legal standard, or “burden of proof,” did the Petitioner need to meet to win her case?

5. What two key community documents, in addition to Arizona state law, define the Respondent’s responsibility for maintaining “common elements”?

6. Summarize the findings of the two inspection reports mentioned in the evidence (from Olander’s and the December 23, 2019 invoice).

7. What was the Petitioner’s theory about the source of the leak, as stated during the hearing?

8. How did Robert Eric Struse, the Respondent’s Statutory Agent, counter the Petitioner’s theory about the stucco crack?

9. What was the final ruling, or “Order,” issued by the Administrative Law Judge?

10. Why did the Administrative Law Judge conclude that the Petitioner failed to meet her burden of proof?

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Answer Key

1. The Petitioner was Ronna Biesecker, who owned condominium unit A113. The Respondent was the 6100 Fifth Condominium Homeowners Association, of which the Petitioner was a member.

2. The Petitioner filed a petition alleging the Respondent violated its CC&Rs (§ 10(c)) and Arizona statute A.R.S. § 33-1247 by failing to maintain the common elements, which she believed were the source of water leaks in her unit.

3. The Respondent argued that the source of the water leaks was the upstairs unit’s sliding doors or track assemblies. Therefore, the responsibility for maintenance and repair belonged to the owner of that specific unit, not the Homeowners Association.

4. The Petitioner had the burden of proof to establish her claim by a “preponderance of the evidence.” This legal standard requires providing proof that convinces the trier of fact that the contention is more probably true than not.

5. The Respondent’s responsibility is defined in Article II.E, Section 1 of the community Bylaws and Section C of the CC&Rs. Both documents state the association is responsible for the maintenance and repair of common elements using assessments paid by owners.

6. An employee from Olander’s opined that the leak was coming from the unit above Petitioner’s, specifically from large gaps under the sliding door’s threshold. Similarly, the inspector’s invoice from December 23, 2019, concluded that the water damage appeared to be coming from the upstairs unit’s sliding doors or their track assemblies.

7. During the hearing, the Petitioner stated that it was “obvious” the leak was coming from a crack in the stucco in the pop-out surrounding the sliding doors at the roof level. She posited this was a common element and therefore the Respondent’s responsibility to repair.

8. Mr. Struse testified that if water were leaking through the crack in the stucco, the upstairs unit would have also sustained internal damage. He confirmed that an inspection of the inside of the upstairs unit showed this was not happening, undermining the Petitioner’s theory.

9. The Administrative Law Judge ordered that the Petitioner’s petition be dismissed.

10. The judge concluded the Petitioner failed to meet her burden of proof because the credible evidence, particularly the opinions of the companies that inspected the area, concluded the leak was coming from the sliding glass door of the unit above. The Petitioner did not establish by a preponderance of the evidence that the leak was attributable to the condition of the common elements.

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Essay Questions

The following questions are designed for longer-form analysis. Formulate a detailed response for each, citing specific evidence and legal principles from the case document to support your arguments.

1. Analyze the distinction between “common elements” and an individual “unit” as defined by A.R.S. § 33-1247 and the community’s governing documents. How was this distinction central to the judge’s final decision in this case?

2. Discuss the role and weight of evidence presented during the hearing. Compare the Petitioner’s testimony and personal observations with the professional opinions from Olander’s and the inspector. Why did the judge find the professional opinions more convincing in determining the outcome?

3. Explain the legal standard of “preponderance of the evidence” as defined in the case document’s Conclusions of Law. Using specific examples from the hearing evidence, detail why Ronna Biesecker failed to meet this standard.

4. Based on the referenced community documents, what are the primary maintenance responsibilities of the 6100 Fifth Condominium Homeowners Association? How did the Respondent’s stated refusal to “arbitrate, mediate, or serve as a third party” in the dispute between unit owners align with or diverge from these responsibilities?

5. Imagine you are advising the Petitioner before the hearing. What additional evidence or types of expert testimony could she have presented to potentially change the outcome of the case and successfully prove the leak was the Respondent’s responsibility?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Tammy L. Eigenheer) from the Office of Administrative Hearings who presides over the evidentiary hearing and issues a legally binding decision and order.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. The statutes referenced (e.g., § 33-1247) govern the responsibilities of condominium associations and the legal procedures for disputes.

Bylaws

A set of rules governing the internal operations of an organization. In this case, Article II.E, Section 1 of the Bylaws obligates the Association to maintain the common elements using assessments paid by owners.

CC&Rs (Covenants, Conditions, and Restrictions)

A legal document that outlines the rights and obligations of property owners and the homeowners association. Section C of the CC&Rs required the Association to maintain, repair, and care for the common elements.

Common Elements

Areas of the condominium property for which the homeowners association is responsible for maintenance, upkeep, care, and repair, as distinguished from an individual owner’s unit.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Ronna Biesecker, the condominium owner who alleged the homeowners association violated its duties.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and is established by evidence with the most convincing force.

Respondent

The party against whom a petition is filed. In this case, the 6100 Fifth Condominium Homeowners Association.

Statutory Agent

An individual designated to receive legal notices and appear on behalf of a business entity. In this case, Robert Eric Struse appeared and testified on behalf of the Respondent association.






Blog Post – 20F-H2020050-REL


Your HOA Isn’t Your Landlord: 3 Surprising Lessons from a Condo Water Leak Lawsuit

Introduction: The Dreaded Drip

It’s a scenario that strikes fear into the heart of any condo owner: the tell-tale stain on the ceiling, the damp spot on the wall, the dreaded drip of a mysterious water leak. The immediate anxiety is followed by a pressing question: “Who is responsible for fixing this, and who pays for the damage?” Many assume the answer is straightforward, but as a recent lawsuit involving the 6100 Fifth Condominium Homeowners Association demonstrates, the lines of responsibility in a condominium community are often more complicated than they appear.

This article explores a real-life court case between a condo owner and her HOA to uncover three surprising truths about condo ownership, liability, and the true role of your HOA.

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1. It’s Not Where the Damage Is, It’s Where the Leak Starts

In the case, condo owner Ronna Biesecker experienced persistent water leaks in her unit (A113) around her sliding glass door. On May 1, 2019, after observing new cracks in the exterior stucco, she “posited that the cracks could be a source of the leak.” This became the foundation of her claim: if the water was coming from the stucco—a “Common Element”—then the HOA was responsible for the repairs.

However, a year-long trail of evidence pointed in a different direction. As early as January 18, 2019, an employee from the door installation company opined that the leak was “coming from the unit above.” On February 8, 2019, a handyman repairing plaster damage stated the issue was from “an old leak coming from above.” Even a roofing report from October 28, 2019, which noted the stucco cracking, stopped short of blaming it, instead recommending the owner contact a “stucco contractor or Window Company.”

This evidence culminated in a formal inspector’s report on December 23, 2019, which concluded the water was “coming from the upstairs unit sliding doors or their track assemblies.” Because the source of the leak originated from a part of the neighbor’s private unit, the legal responsibility shifted. Based on Arizona statute A.R.S. § 33-1247, the HOA was not liable. The key lesson here is unambiguous: legal responsibility follows the source of the problem, not the location of the resulting damage.

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2. “More Probably True Than Not”: The Burden of Proof Is on You

In any lawsuit, the person bringing the complaint—in this case, the homeowner—carries the “burden of proof.” This means she had to provide enough evidence to meet a specific legal standard, which the court defined as “preponderance of the evidence.” The legal decision offers a clear definition of this standard:

“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

In simple terms, Ms. Biesecker had to convince the judge that her theory—that the leak came from the common element stucco—was more likely to be true than the HOA’s theory that it came from the neighbor’s door.

Her claim was undone by simple logic. The HOA’s Statutory Agent, Mr. Struse, provided devastating testimony, arguing that “if water was leaking through the crack in the stucco, the upstairs unit would have also had internal damage, which was not happening.” This single point made the petitioner’s theory far less probable. The judge ultimately ruled that the petitioner “failed to establish by a preponderance of the evidence that Respondent violated the provisions of the CC&Rs or Arizona statutes,” proving that an owner’s belief isn’t enough without convincing evidence.

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3. Your HOA Won’t (and Often Can’t) Settle Neighbor-to-Neighbor Fights

Before filing the lawsuit, the petitioner attempted to resolve the issue directly. On or about February 11, 2019, she contacted the owner of the unit above hers to request repairs but “did not receive a response.” Frustrated, she turned to the HOA for help. In March or April 2019, she asked the Property Manager to “help mediate the issue” between her and her neighbor.

The HOA’s response was direct and legally sound: the Property Manager “responded that it would not arbitrate, mediate, or serve as a third party to the dispute.” This is a crucial and often misunderstood takeaway for condo owners. While an HOA’s role is to manage common elements and enforce community-wide rules, it is not legally obligated—and often not permitted—to intervene in private disputes between two homeowners over damage originating from private property. Your HOA is not a landlord or a mediator for personal conflicts; it’s an administrative body with a specific and legally defined scope of authority.

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Conclusion: Know Your Lines

The lessons from this case are clear: condo living involves a complex web of overlapping responsibilities. The line between what constitutes a common element, your private property, and your neighbor’s property is legally significant and determines who is ultimately responsible when things go wrong. Understanding these distinctions isn’t just helpful—it’s essential for protecting your investment and resolving issues effectively.

Before the next problem arises, have you read your community documents to know exactly where your responsibility ends and your neighbor’s begins?


Case Participants

Petitioner Side

  • Ronna Biesecker (petitioner)
    Appeared and testified on her own behalf.

Respondent Side

  • Robert Eric Struse (statutory agent)
    6100 Fifth Condominium Homeowners Association
    Appeared and presented testimony on behalf of Respondent.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

John A Sellers v. Rancho Madera Condominium Association

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

Case Summary

Case ID 19F-H1918010-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien, Edith I. Rudder

Alleged Violations

CC&Rs § 3.10, 3.10.2, 3.10.4

Outcome Summary

The Administrative Law Judge dismissed the petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof by establishing that the Respondent HOA violated its CC&Rs. The governing documents grant the HOA the right, but not the obligation, to enforce maintenance duties specifically assigned to Unit Owners concerning the drainage easement.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs because the HOA was found to have a right to enforce maintenance of the drainage easement, but not a mandatory obligation to do so under the terms of the CC&Rs.

Key Issues & Findings

HOA failure to enforce unit owner maintenance obligations regarding stormwater drainage easement

Petitioner alleged that the Respondent HOA violated the CC&Rs by failing to enforce unit owner responsibility to keep the stormwater drainage area free of obstructions like vegetation and fencing materials, potentially causing a risk of flooding to his unit.

Orders: The petition was dismissed. The Administrative Law Judge determined that the CC&Rs assign Unit Owners the responsibility to clear the drainage area and grant the HOA the right, but not an obligation, to enforce this maintenance.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: HOA, CC&Rs, Drainage Easement, Enforcement Obligation, Condominium Unit Owner
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

19F-H1918010-REL-RHG Decision – 706533.pdf

Uploaded 2026-01-23T17:26:28 (42.2 KB)

19F-H1918010-REL-RHG Decision – 707530.pdf

Uploaded 2026-01-23T17:26:34 (111.5 KB)

19F-H1918010-REL-RHG Decision – ../19F-H1918010-REL/667122.pdf

Uploaded 2026-01-23T17:26:37 (50.0 KB)

19F-H1918010-REL-RHG Decision – ../19F-H1918010-REL/678371.pdf

Uploaded 2026-01-23T17:26:40 (129.5 KB)





Briefing Doc – 19F-H1918010-REL-RHG


Dispute Analysis: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This briefing document synthesizes the legal proceedings and outcomes of a dispute between homeowner John A. Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent). The core of the conflict was Mr. Sellers’ allegation that the Association violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, thereby creating a flood risk to his property, Unit 12.

The case was adjudicated by the Arizona Office of Administrative Hearings (OAH) in a process that included an initial hearing, a decision, a granted request for rehearing, and a final binding decision. In both instances, the Administrative Law Judge ruled against the Petitioner.

The initial decision, issued in December 2018, concluded that Mr. Sellers failed to provide sufficient evidence that the materials in the channel actually impeded water flow or posed an unreasonable flood risk. The ruling highlighted that the channel had functioned as intended since 2012 without any flooding incidents. Following a rehearing in April 2019, the second and final decision in May 2019 reinforced this conclusion. It further clarified a crucial distinction in the CC&Rs: while the Association possesses the right to enforce maintenance rules upon homeowners, the governing documents do not impose an explicit obligation to do so proactively before any damage has occurred. The responsibility for maintaining the drainage area rests with the individual unit owners, and the Association’s primary duty is to repair damages after the fact, billing the responsible owner. The petition was ultimately dismissed.

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I. Case Overview

This case documents a formal complaint filed by a homeowner against his condominium association, which was resolved through the Arizona Department of Real Estate and the Office of Administrative Hearings.

• Case Number: 19F-H1918010-REL

• Petitioner: John A. Sellers, owner of Unit 12 in Rancho Madera

• Respondent: Rancho Madera Condominium Association, a 46-unit development in Cave Creek, Arizona.

• Venue: Arizona Office of Administrative Hearings (OAH)

Key Chronology of Events

Aug 23, 2018

Petitioner files a single-issue petition with the Arizona Department of Real Estate.

Oct 23, 2018

An OAH order vacates the initial hearing after the Petitioner indicates a wish to withdraw the petition.

Nov 5, 2018

The first evidentiary hearing convenes, indicating the withdrawal was rescinded.

Dec 12, 2018

The first evidentiary hearing concludes.

Dec 26, 2018

Administrative Law Judge Diane Mihalsky issues a decision denying the petition.

Feb 1, 2019

Petitioner files a Rehearing Request with the Commissioner of the Department of Real Estate.

Feb 22, 2019

The Commissioner grants the Rehearing Request.

Apr 15, 2019

The rehearing convenes and concludes before Administrative Law Judge Tammy L. Eigenheer.

May 7, 2019

OAH issues an order striking a supplemental, post-hearing filing by the Petitioner from the record.

May 10, 2019

Judge Eigenheer issues a final Administrative Law Judge Decision, again dismissing the petition.

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II. Petitioner’s Core Allegation

Mr. Sellers’ petition was based on a single issue: the alleged violation of Section 3.10 of the Association’s CC&Rs.

• The Violation: The Petitioner claimed the Association failed in its duty to require owners of “Drainage Easement Units” to remove obstructions from a shared stormwater channel.

• The Obstructions: The materials of concern included “large succulents, shrubs, and cacti” growing in the drainage area’s rip-rap, as well as chicken wire that at least one owner had installed to contain a pet.

• The Perceived Risk: Mr. Sellers testified that these items “could catch storm debris and cause the drainage channel to become clogged,” leading to a risk of flooding for his Unit 12. He submitted videos of heavy rains and flooding in other parts of Cave Creek as evidence of the potential danger.

• Financial Impact Claim: The Petitioner was undergoing a contentious divorce, and Unit 12, as a community asset, was for sale under a court order. He asserted that the unresolved drainage issue and his required disclosure of the dispute had reduced the unit’s market price by $40,000.

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III. Respondent’s Position and Actions

The Rancho Madera Condominium Association, represented by its President, Jeffrey Kaplan, denied any violation of the CC&Rs and presented a multi-faceted defense.

• Lack of Historical Precedent: Mr. Kaplan, an owner since 2012, testified that water had never entered the property from the east, and Unit 12 had never sustained any damage from flooding. This held true even during a “100-year storm in 2014.” After a significant rainstorm in August 2018, he personally inspected the drainage easement and “did not see any water in it.”

• Origin of Vegetation: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that was shown in the Petitioner’s photographic evidence.

• Proactive Communication: To address the Petitioner’s concerns, the Board instructed its management company to act. Letters were sent to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the easement free of obstructions.

• Jurisdictional Confirmation: Mr. Kaplan contacted officials from the Maricopa County Flood Control District and the Town of Cave Creek. Both agencies confirmed the drainage area was not on any official floodplain map, and therefore, the Association was “solely responsible” for its maintenance and enforcement.

• Contradictory Evidence: The Association submitted a June 22, 2018 email from the Petitioner’s wife, Debborah Sellers, which directly contradicted the Petitioner’s claims. She wrote, “There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing.” She also referred to his claims as “nonsense.”

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IV. Analysis of Governing CC&Rs

The dispute centered on the interpretation of specific sections of the Rancho Madera CC&Rs. The judges in both hearings analyzed these sections to determine the respective duties of the homeowners and the Association.

Section

Provision Summary

Key Language

Establishes a perpetual “Drainage Easement” over the eastern five feet of Units 9 through 18 for stormwater conveyance.

“…for the purpose of constructing, maintaining, repairing and replacing a drainage channel…”

3.10.2

Assigns the primary maintenance duty to the individual unit owners within the easement area.

“Each Unit Owner of a Drainage Easement Unit shall keep his Drainage Easement Area Free of weeds and other debris so that the stormwater can flow freely… No Improvement… shall be… allowed to grow… that may… impede the flow of water…”

3.10.4

Defines the Association’s role in the event of damage resulting from a unit owner’s failure to maintain the easement.

“If the failure of one Unit Owner to maintain his Drainage Easement Area… results in damage… the Association shall repair or replace such damage… and the cost… shall be paid by the Unit Owner that caused the damage…”

13.1.1

Grants the Association the power to enforce the CC&Rs.

“The Association shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants…”

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V. Administrative Law Judge Decisions and Rationale

The Petitioner’s case was heard twice and denied both times, with the second decision providing a definitive interpretation of the Association’s duties under the CC&Rs.

Initial Decision (December 26, 2018)

• Presiding Judge: Diane Mihalsky

• Conclusion: The Petitioner failed to meet his burden of proof “by a preponderance of the evidence.”

• Rationale: The judge found a critical failure in the Petitioner’s evidence. While he successfully “established that there are some plants and chicken wire in the stormwater drainage canal,” he “did not establish that the plants or chicken wire impede the flow of water.” The Respondent, in contrast, successfully established that the channel had always “functioned as intended” and that “Unit 12 has never flooded.” The judge concluded there was “no unreasonable risk that Unit 12 will flood.”

• Order: The petition was denied.

Rehearing and Final Decision (May 10, 2019)

• Presiding Judge: Tammy L. Eigenheer

• Context: The rehearing was granted based on the Petitioner’s claims of procedural irregularities and legal errors in the first hearing.

• Petitioner’s Refined Argument: During the rehearing, the Petitioner argued that the Association’s right to enforce the CC&Rs (under Section 13.1.1) becomes an obligation when safety and property values are affected.

• Conclusion: The petition was dismissed.

• Rationale: The final decision hinged on a strict interpretation of the CC&Rs. The judge determined that the documents create a clear hierarchy of responsibility:

1. Unit Owners: Bear the primary responsibility for keeping the easement clear (Section 3.10.2).

2. The Association: Has a responsibility to act only after damage occurs due to an owner’s failure, at which point it must repair the damage and bill the responsible owner (Section 3.10.4).

• Final Legal Interpretation: The judge concluded, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.” The petition was dismissed because the Petitioner could not prove the Association had violated any actual obligation laid out in the governing documents. This decision was issued as final and binding on the parties.






Study Guide – 19F-H1918010-REL-RHG


Study Guide: Case No. 19F-H1918010-REL, Sellers v. Rancho Madera Condominium Association

This guide provides a detailed review of the administrative legal proceedings between Petitioner John A. Sellers and Respondent Rancho Madera Condominium Association. It is designed to assess comprehension of the case’s facts, legal arguments, and procedural history.

Short-Answer Quiz

Answer each question in 2-3 sentences based on the information provided in the source documents.

1. What was the central allegation John A. Sellers filed against the Rancho Madera Condominium Association on August 23, 2018?

2. Identify the specific sections of the Covenants, Conditions, and Restrictions (CC&Rs) that were central to the dispute.

3. Who is responsible for maintaining the Drainage Easement Area according to CC&R § 3.10.2?

4. What actions did the Association’s management company take in response to the Petitioner’s concerns?

5. What was the testimony of Jeffrey Kaplan, the Association’s President, regarding the history of flooding at Rancho Madera?

6. Why did the Commissioner of the Department of Real Estate grant the Petitioner’s request for a rehearing?

7. What was the procedural outcome of Petitioner Sellers’ attempt to submit supplemental arguments after the April 15, 2019, rehearing?

8. How did Administrative Law Judge Tammy L. Eigenheer distinguish between a “right to enforce” and an “obligation to enforce” in her final decision?

9. What evidence did the Petitioner present to support his claim that the drainage channel was at risk of clogging?

10. What was the final ruling in the Administrative Law Judge Decision dated May 10, 2019?

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Answer Key

1. Petitioner John A. Sellers alleged that the Association had violated its CC&Rs, specifically § 3.10, by failing to require condominium owners to remove vegetation and fencing materials from the stormwater channel. Sellers claimed this failure created a risk of flooding for his unit.

2. The central CC&R sections were § 3.10, which establishes the stormwater drainage easement; § 3.10.2, which outlines the maintenance responsibilities of Unit Owners; § 3.10.4, which details the Association’s role in repairing damages; and § 13.1.1, which grants the Association the right to enforce the CC&Rs.

3. According to CC&R § 3.10.2, each individual Unit Owner of a Drainage Easement Unit is responsible for keeping their respective Drainage Easement Area free of weeds and other debris. The text explicitly states that no improvements, including plants, should be allowed that might impede the flow of water.

4. To address the Petitioner’s concerns, the Association’s management company sent letters to the owners of the Drainage Easement Units on April 18, 2018, and July 19, 2018. These letters reminded the owners of their responsibility to keep the easement area clear of obstructions and debris.

5. Jeffrey Kaplan testified that he bought one of the first units in 2012 and that water has never entered Rancho Madera from the east. He specifically noted that no flooding occurred even during the 100-year storm in 2014, and that after a significant rainstorm in August 2018, he inspected the easement and saw no water in it.

6. The Commissioner granted the Rehearing Request “for the reasons outlined in the Petitioners’ Rehearing Request.” The request itself alleged irregularity in the proceedings, newly discovered evidence, errors in the admission of evidence, and that the original decision was arbitrary, capricious, or contrary to law.

7. After the rehearing concluded, the Petitioner submitted supplemental authority and argument. The Respondent argued this filing was untimely, and Administrative Law Judge Tammy L. Eigenheer ordered the filing to be stricken from the record and closed the record on May 7, 2019.

8. Judge Eigenheer’s decision concluded that while the Association has the right to enforce the CC&Rs under § 13.1.1, nothing in the documents creates an obligation for it to proactively do so regarding maintenance. The only obligation specified is to repair damage after it occurs, with the cost being billed to the responsible unit owner.

9. The Petitioner provided photographs showing large succulents, shrubs, and cacti growing in the rip rap of the Drainage Easement Area. He also showed at least one instance where chicken wire had been placed across the channel to contain a pet, testifying that these items could catch storm debris and cause a clog.

10. The final ruling, issued on May 10, 2019, was that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated Section 3.10 of the CC&Rs. Therefore, the petition was dismissed, and no action was required of the Respondent.

——————————————————————————–

Essay Questions

Construct detailed essay responses to the following prompts, drawing exclusively from the provided source documents to support your analysis.

1. Trace the complete procedural history of case No. 19F-H1918010-REL from the initial petition to the final order. Detail the key dates, presiding judges, significant filings, and the outcome of each stage of the proceedings.

2. Analyze the legal reasoning used by the Administrative Law Judges in both the initial decision (December 26, 2018) and the rehearing decision (May 10, 2019). Compare and contrast their interpretations of the CC&Rs and the standard of “preponderance of the evidence.”

3. Evaluate the evidence and arguments presented by both the Petitioner, John A. Sellers, and the Respondent, represented by Jeffrey Kaplan. What were the strengths and weaknesses of each party’s case as detailed in the hearing summaries?

4. Discuss the roles and responsibilities of the Unit Owners versus the Condominium Association as defined by CC&R Sections 3.10, 3.10.2, 3.10.4, and 13.1.1. How did the interpretation of these sections ultimately determine the outcome of the case?

5. Examine the external factors mentioned in the hearings, such as the Petitioner’s divorce, the market value of his unit, and communications with the Maricopa County Flood Control District. How did the Administrative Law Judge address these issues and determine their relevance (or irrelevance) to the central legal question?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings at the Office of Administrative Hearings. In this case, Diane Mihalsky presided over the initial hearing and Tammy L. Eigenheer presided over the rehearing.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set forth the rules for the Rancho Madera condominium development.

Common Elements

Areas within the condominium development designed for common use, such as areas for stormwater conveyance mentioned in the CC&Rs.

Drainage Easement Area

The eastern five feet of Units 9 through 18, over which a perpetual non-exclusive drainage easement was created for the purpose of stormwater drainage.

Drainage Improvements

The drainage channel constructed within the Drainage Easement Area, which may consist of decomposed granite, rip rap (large stones), or concrete.

Office of Administrative Hearings (OAH)

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

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner is John A. Sellers.

Preponderance of the Evidence

The standard of proof in this administrative hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making the contention more probably true than not.

Respondent

The party against whom a petition is filed. In this matter, the Respondent is the Rancho Madera Condominium Association.

Restrictive Covenant

A provision in a deed or other legal document that limits the use of a property. The CC&Rs in this case are a form of restrictive covenant.

Unit Owner

An individual who owns a condominium unit within the development and is a member of the owners’ association.






Blog Post – 19F-H1918010-REL-RHG


I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.

The Anatomy of a Neighborhood War

Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.

This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.

A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.

1. Proving a Rule Was Broken Isn’t the Same as Proving Harm

The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”

But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”

The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.

2. An HOA’s “Right” to Enforce Is Not an “Obligation”

After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.

Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”

The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.

“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.

3. Outside Conflicts Can Cast a Long Shadow

Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.

The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.

4. Writing Letters Isn’t the Same as Being Heard

Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.

Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.

The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.

A Cautionary Tale for Any Homeowner

What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.

It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?


Case Participants

Petitioner Side

  • John A Sellers (petitioner)
    Appeared on his own behalf

Respondent Side

  • Edward D. O'Brien (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
  • Edith I. Rudder (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
  • Jeffrey Kaplan (board president/witness)
    Rancho Madera Condominium Association
    President of Respondent, testified

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    ALJ for initial proceedings
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    ALJ for rehearing proceedings
  • Judy Lowe (commissioner (ADRE))
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • c. serrano (clerk)
    Office of Administrative Hearings
    Transmittal/filing clerk
  • F. Del Sol (clerk)
    Office of Administrative Hearings
    Transmittal/filing clerk

Other Participants

  • Debborah Sellers (witness/spouse)
    Petitioner's wife, testimony via email submitted by Respondent

John A Sellers v. Rancho Madera Condominium Association

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

Case Summary

Case ID 19F-H1918010-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien, Edith I. Rudder

Alleged Violations

CC&Rs § 3.10, 3.10.2, 3.10.4

Outcome Summary

The Administrative Law Judge dismissed the petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof by establishing that the Respondent HOA violated its CC&Rs. The governing documents grant the HOA the right, but not the obligation, to enforce maintenance duties specifically assigned to Unit Owners concerning the drainage easement.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the CC&Rs because the HOA was found to have a right to enforce maintenance of the drainage easement, but not a mandatory obligation to do so under the terms of the CC&Rs.

Key Issues & Findings

HOA failure to enforce unit owner maintenance obligations regarding stormwater drainage easement

Petitioner alleged that the Respondent HOA violated the CC&Rs by failing to enforce unit owner responsibility to keep the stormwater drainage area free of obstructions like vegetation and fencing materials, potentially causing a risk of flooding to his unit.

Orders: The petition was dismissed. The Administrative Law Judge determined that the CC&Rs assign Unit Owners the responsibility to clear the drainage area and grant the HOA the right, but not an obligation, to enforce this maintenance.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: HOA, CC&Rs, Drainage Easement, Enforcement Obligation, Condominium Unit Owner
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

19F-H1918010-REL-RHG Decision – 706533.pdf

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19F-H1918010-REL-RHG Decision – 707530.pdf

Uploaded 2025-10-09T03:33:29 (111.5 KB)

19F-H1918010-REL-RHG Decision – ../19F-H1918010-REL/667122.pdf

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19F-H1918010-REL-RHG Decision – ../19F-H1918010-REL/678371.pdf

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Briefing Doc – 19F-H1918010-REL-RHG


Dispute Analysis: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This briefing document synthesizes the legal proceedings and outcomes of a dispute between homeowner John A. Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent). The core of the conflict was Mr. Sellers’ allegation that the Association violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, thereby creating a flood risk to his property, Unit 12.

The case was adjudicated by the Arizona Office of Administrative Hearings (OAH) in a process that included an initial hearing, a decision, a granted request for rehearing, and a final binding decision. In both instances, the Administrative Law Judge ruled against the Petitioner.

The initial decision, issued in December 2018, concluded that Mr. Sellers failed to provide sufficient evidence that the materials in the channel actually impeded water flow or posed an unreasonable flood risk. The ruling highlighted that the channel had functioned as intended since 2012 without any flooding incidents. Following a rehearing in April 2019, the second and final decision in May 2019 reinforced this conclusion. It further clarified a crucial distinction in the CC&Rs: while the Association possesses the right to enforce maintenance rules upon homeowners, the governing documents do not impose an explicit obligation to do so proactively before any damage has occurred. The responsibility for maintaining the drainage area rests with the individual unit owners, and the Association’s primary duty is to repair damages after the fact, billing the responsible owner. The petition was ultimately dismissed.

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I. Case Overview

This case documents a formal complaint filed by a homeowner against his condominium association, which was resolved through the Arizona Department of Real Estate and the Office of Administrative Hearings.

• Case Number: 19F-H1918010-REL

• Petitioner: John A. Sellers, owner of Unit 12 in Rancho Madera

• Respondent: Rancho Madera Condominium Association, a 46-unit development in Cave Creek, Arizona.

• Venue: Arizona Office of Administrative Hearings (OAH)

Key Chronology of Events

Aug 23, 2018

Petitioner files a single-issue petition with the Arizona Department of Real Estate.

Oct 23, 2018

An OAH order vacates the initial hearing after the Petitioner indicates a wish to withdraw the petition.

Nov 5, 2018

The first evidentiary hearing convenes, indicating the withdrawal was rescinded.

Dec 12, 2018

The first evidentiary hearing concludes.

Dec 26, 2018

Administrative Law Judge Diane Mihalsky issues a decision denying the petition.

Feb 1, 2019

Petitioner files a Rehearing Request with the Commissioner of the Department of Real Estate.

Feb 22, 2019

The Commissioner grants the Rehearing Request.

Apr 15, 2019

The rehearing convenes and concludes before Administrative Law Judge Tammy L. Eigenheer.

May 7, 2019

OAH issues an order striking a supplemental, post-hearing filing by the Petitioner from the record.

May 10, 2019

Judge Eigenheer issues a final Administrative Law Judge Decision, again dismissing the petition.

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II. Petitioner’s Core Allegation

Mr. Sellers’ petition was based on a single issue: the alleged violation of Section 3.10 of the Association’s CC&Rs.

• The Violation: The Petitioner claimed the Association failed in its duty to require owners of “Drainage Easement Units” to remove obstructions from a shared stormwater channel.

• The Obstructions: The materials of concern included “large succulents, shrubs, and cacti” growing in the drainage area’s rip-rap, as well as chicken wire that at least one owner had installed to contain a pet.

• The Perceived Risk: Mr. Sellers testified that these items “could catch storm debris and cause the drainage channel to become clogged,” leading to a risk of flooding for his Unit 12. He submitted videos of heavy rains and flooding in other parts of Cave Creek as evidence of the potential danger.

• Financial Impact Claim: The Petitioner was undergoing a contentious divorce, and Unit 12, as a community asset, was for sale under a court order. He asserted that the unresolved drainage issue and his required disclosure of the dispute had reduced the unit’s market price by $40,000.

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III. Respondent’s Position and Actions

The Rancho Madera Condominium Association, represented by its President, Jeffrey Kaplan, denied any violation of the CC&Rs and presented a multi-faceted defense.

• Lack of Historical Precedent: Mr. Kaplan, an owner since 2012, testified that water had never entered the property from the east, and Unit 12 had never sustained any damage from flooding. This held true even during a “100-year storm in 2014.” After a significant rainstorm in August 2018, he personally inspected the drainage easement and “did not see any water in it.”

• Origin of Vegetation: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that was shown in the Petitioner’s photographic evidence.

• Proactive Communication: To address the Petitioner’s concerns, the Board instructed its management company to act. Letters were sent to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the easement free of obstructions.

• Jurisdictional Confirmation: Mr. Kaplan contacted officials from the Maricopa County Flood Control District and the Town of Cave Creek. Both agencies confirmed the drainage area was not on any official floodplain map, and therefore, the Association was “solely responsible” for its maintenance and enforcement.

• Contradictory Evidence: The Association submitted a June 22, 2018 email from the Petitioner’s wife, Debborah Sellers, which directly contradicted the Petitioner’s claims. She wrote, “There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing.” She also referred to his claims as “nonsense.”

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IV. Analysis of Governing CC&Rs

The dispute centered on the interpretation of specific sections of the Rancho Madera CC&Rs. The judges in both hearings analyzed these sections to determine the respective duties of the homeowners and the Association.

Section

Provision Summary

Key Language

Establishes a perpetual “Drainage Easement” over the eastern five feet of Units 9 through 18 for stormwater conveyance.

“…for the purpose of constructing, maintaining, repairing and replacing a drainage channel…”

3.10.2

Assigns the primary maintenance duty to the individual unit owners within the easement area.

“Each Unit Owner of a Drainage Easement Unit shall keep his Drainage Easement Area Free of weeds and other debris so that the stormwater can flow freely… No Improvement… shall be… allowed to grow… that may… impede the flow of water…”

3.10.4

Defines the Association’s role in the event of damage resulting from a unit owner’s failure to maintain the easement.

“If the failure of one Unit Owner to maintain his Drainage Easement Area… results in damage… the Association shall repair or replace such damage… and the cost… shall be paid by the Unit Owner that caused the damage…”

13.1.1

Grants the Association the power to enforce the CC&Rs.

“The Association shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants…”

——————————————————————————–

V. Administrative Law Judge Decisions and Rationale

The Petitioner’s case was heard twice and denied both times, with the second decision providing a definitive interpretation of the Association’s duties under the CC&Rs.

Initial Decision (December 26, 2018)

• Presiding Judge: Diane Mihalsky

• Conclusion: The Petitioner failed to meet his burden of proof “by a preponderance of the evidence.”

• Rationale: The judge found a critical failure in the Petitioner’s evidence. While he successfully “established that there are some plants and chicken wire in the stormwater drainage canal,” he “did not establish that the plants or chicken wire impede the flow of water.” The Respondent, in contrast, successfully established that the channel had always “functioned as intended” and that “Unit 12 has never flooded.” The judge concluded there was “no unreasonable risk that Unit 12 will flood.”

• Order: The petition was denied.

Rehearing and Final Decision (May 10, 2019)

• Presiding Judge: Tammy L. Eigenheer

• Context: The rehearing was granted based on the Petitioner’s claims of procedural irregularities and legal errors in the first hearing.

• Petitioner’s Refined Argument: During the rehearing, the Petitioner argued that the Association’s right to enforce the CC&Rs (under Section 13.1.1) becomes an obligation when safety and property values are affected.

• Conclusion: The petition was dismissed.

• Rationale: The final decision hinged on a strict interpretation of the CC&Rs. The judge determined that the documents create a clear hierarchy of responsibility:

1. Unit Owners: Bear the primary responsibility for keeping the easement clear (Section 3.10.2).

2. The Association: Has a responsibility to act only after damage occurs due to an owner’s failure, at which point it must repair the damage and bill the responsible owner (Section 3.10.4).

• Final Legal Interpretation: The judge concluded, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.” The petition was dismissed because the Petitioner could not prove the Association had violated any actual obligation laid out in the governing documents. This decision was issued as final and binding on the parties.






Study Guide – 19F-H1918010-REL-RHG


Study Guide: Case No. 19F-H1918010-REL, Sellers v. Rancho Madera Condominium Association

This guide provides a detailed review of the administrative legal proceedings between Petitioner John A. Sellers and Respondent Rancho Madera Condominium Association. It is designed to assess comprehension of the case’s facts, legal arguments, and procedural history.

Short-Answer Quiz

Answer each question in 2-3 sentences based on the information provided in the source documents.

1. What was the central allegation John A. Sellers filed against the Rancho Madera Condominium Association on August 23, 2018?

2. Identify the specific sections of the Covenants, Conditions, and Restrictions (CC&Rs) that were central to the dispute.

3. Who is responsible for maintaining the Drainage Easement Area according to CC&R § 3.10.2?

4. What actions did the Association’s management company take in response to the Petitioner’s concerns?

5. What was the testimony of Jeffrey Kaplan, the Association’s President, regarding the history of flooding at Rancho Madera?

6. Why did the Commissioner of the Department of Real Estate grant the Petitioner’s request for a rehearing?

7. What was the procedural outcome of Petitioner Sellers’ attempt to submit supplemental arguments after the April 15, 2019, rehearing?

8. How did Administrative Law Judge Tammy L. Eigenheer distinguish between a “right to enforce” and an “obligation to enforce” in her final decision?

9. What evidence did the Petitioner present to support his claim that the drainage channel was at risk of clogging?

10. What was the final ruling in the Administrative Law Judge Decision dated May 10, 2019?

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Answer Key

1. Petitioner John A. Sellers alleged that the Association had violated its CC&Rs, specifically § 3.10, by failing to require condominium owners to remove vegetation and fencing materials from the stormwater channel. Sellers claimed this failure created a risk of flooding for his unit.

2. The central CC&R sections were § 3.10, which establishes the stormwater drainage easement; § 3.10.2, which outlines the maintenance responsibilities of Unit Owners; § 3.10.4, which details the Association’s role in repairing damages; and § 13.1.1, which grants the Association the right to enforce the CC&Rs.

3. According to CC&R § 3.10.2, each individual Unit Owner of a Drainage Easement Unit is responsible for keeping their respective Drainage Easement Area free of weeds and other debris. The text explicitly states that no improvements, including plants, should be allowed that might impede the flow of water.

4. To address the Petitioner’s concerns, the Association’s management company sent letters to the owners of the Drainage Easement Units on April 18, 2018, and July 19, 2018. These letters reminded the owners of their responsibility to keep the easement area clear of obstructions and debris.

5. Jeffrey Kaplan testified that he bought one of the first units in 2012 and that water has never entered Rancho Madera from the east. He specifically noted that no flooding occurred even during the 100-year storm in 2014, and that after a significant rainstorm in August 2018, he inspected the easement and saw no water in it.

6. The Commissioner granted the Rehearing Request “for the reasons outlined in the Petitioners’ Rehearing Request.” The request itself alleged irregularity in the proceedings, newly discovered evidence, errors in the admission of evidence, and that the original decision was arbitrary, capricious, or contrary to law.

7. After the rehearing concluded, the Petitioner submitted supplemental authority and argument. The Respondent argued this filing was untimely, and Administrative Law Judge Tammy L. Eigenheer ordered the filing to be stricken from the record and closed the record on May 7, 2019.

8. Judge Eigenheer’s decision concluded that while the Association has the right to enforce the CC&Rs under § 13.1.1, nothing in the documents creates an obligation for it to proactively do so regarding maintenance. The only obligation specified is to repair damage after it occurs, with the cost being billed to the responsible unit owner.

9. The Petitioner provided photographs showing large succulents, shrubs, and cacti growing in the rip rap of the Drainage Easement Area. He also showed at least one instance where chicken wire had been placed across the channel to contain a pet, testifying that these items could catch storm debris and cause a clog.

10. The final ruling, issued on May 10, 2019, was that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated Section 3.10 of the CC&Rs. Therefore, the petition was dismissed, and no action was required of the Respondent.

——————————————————————————–

Essay Questions

Construct detailed essay responses to the following prompts, drawing exclusively from the provided source documents to support your analysis.

1. Trace the complete procedural history of case No. 19F-H1918010-REL from the initial petition to the final order. Detail the key dates, presiding judges, significant filings, and the outcome of each stage of the proceedings.

2. Analyze the legal reasoning used by the Administrative Law Judges in both the initial decision (December 26, 2018) and the rehearing decision (May 10, 2019). Compare and contrast their interpretations of the CC&Rs and the standard of “preponderance of the evidence.”

3. Evaluate the evidence and arguments presented by both the Petitioner, John A. Sellers, and the Respondent, represented by Jeffrey Kaplan. What were the strengths and weaknesses of each party’s case as detailed in the hearing summaries?

4. Discuss the roles and responsibilities of the Unit Owners versus the Condominium Association as defined by CC&R Sections 3.10, 3.10.2, 3.10.4, and 13.1.1. How did the interpretation of these sections ultimately determine the outcome of the case?

5. Examine the external factors mentioned in the hearings, such as the Petitioner’s divorce, the market value of his unit, and communications with the Maricopa County Flood Control District. How did the Administrative Law Judge address these issues and determine their relevance (or irrelevance) to the central legal question?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings at the Office of Administrative Hearings. In this case, Diane Mihalsky presided over the initial hearing and Tammy L. Eigenheer presided over the rehearing.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set forth the rules for the Rancho Madera condominium development.

Common Elements

Areas within the condominium development designed for common use, such as areas for stormwater conveyance mentioned in the CC&Rs.

Drainage Easement Area

The eastern five feet of Units 9 through 18, over which a perpetual non-exclusive drainage easement was created for the purpose of stormwater drainage.

Drainage Improvements

The drainage channel constructed within the Drainage Easement Area, which may consist of decomposed granite, rip rap (large stones), or concrete.

Office of Administrative Hearings (OAH)

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

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner is John A. Sellers.

Preponderance of the Evidence

The standard of proof in this administrative hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making the contention more probably true than not.

Respondent

The party against whom a petition is filed. In this matter, the Respondent is the Rancho Madera Condominium Association.

Restrictive Covenant

A provision in a deed or other legal document that limits the use of a property. The CC&Rs in this case are a form of restrictive covenant.

Unit Owner

An individual who owns a condominium unit within the development and is a member of the owners’ association.






Blog Post – 19F-H1918010-REL-RHG


I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.

The Anatomy of a Neighborhood War

Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.

This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.

A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.

1. Proving a Rule Was Broken Isn’t the Same as Proving Harm

The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”

But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”

The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.

2. An HOA’s “Right” to Enforce Is Not an “Obligation”

After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.

Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”

The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.

“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.

3. Outside Conflicts Can Cast a Long Shadow

Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.

The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.

4. Writing Letters Isn’t the Same as Being Heard

Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.

Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.

The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.

A Cautionary Tale for Any Homeowner

What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.

It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?


Case Participants

Petitioner Side

  • John A Sellers (petitioner)
    Appeared on his own behalf

Respondent Side

  • Edward D. O'Brien (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
  • Edith I. Rudder (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
  • Jeffrey Kaplan (board president/witness)
    Rancho Madera Condominium Association
    President of Respondent, testified

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    ALJ for initial proceedings
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    ALJ for rehearing proceedings
  • Judy Lowe (commissioner (ADRE))
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of official orders
  • c. serrano (clerk)
    Office of Administrative Hearings
    Transmittal/filing clerk
  • F. Del Sol (clerk)
    Office of Administrative Hearings
    Transmittal/filing clerk

Other Participants

  • Debborah Sellers (witness/spouse)
    Petitioner's wife, testimony via email submitted by Respondent

John A Sellers vs. Rancho Madera Condominium Association

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Case Summary

Case ID 19F-H1918010-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium
Additional Citations:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Video Overview

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2026-01-23T17:26:17 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2026-01-23T17:26:21 (129.5 KB)





Briefing Doc – 19F-H1918010-REL


Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”






Study Guide – 19F-H1918010-REL


Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, drawing exclusively from the information provided in the case documents.

1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?

2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.

3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?

4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?

5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?

6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?

7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?

8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?

9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?

10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.

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Answer Key

1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.

2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.

3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.

4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.

5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.

6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.

7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.

8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.

9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.

10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.

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Suggested Essay Questions

1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.

2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.

3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.

4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?

5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.

Drainage Easement

A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.

Drainage Easement Area

The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.

Drainage Improvements

The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.

Preponderance of the Evidence

The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making a contention more probably true than not.

Rehearing

A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.

The Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.






Blog Post – 19F-H1918010-REL


I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.

The Anatomy of a Neighborhood War

Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.

This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.

A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.

1. Proving a Rule Was Broken Isn’t the Same as Proving Harm

The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”

But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”

The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.

2. An HOA’s “Right” to Enforce Is Not an “Obligation”

After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.

Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”

The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.

“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.

3. Outside Conflicts Can Cast a Long Shadow

Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.

The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.

4. Writing Letters Isn’t the Same as Being Heard

Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.

Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.

The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.

A Cautionary Tale for Any Homeowner

What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.

It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?


Case Participants

Petitioner Side

  • John A Sellers (petitioner)

Respondent Side

  • Edward D. O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Jeffrey Kaplan (HOA President/witness)
    Rancho Madera Condominium Association
    Testified on behalf of Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    OAH
    ALJ for initial proceedings
  • Tammy L. Eigenheer (ALJ)
    OAH
    ALJ for rehearing
  • Judy Lowe (Commissioner)
    ADRE
  • LDettorre (ADRE staff)
    ADRE
    Recipient of transmission
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • DGardner (ADRE staff)
    ADRE
    Recipient of transmission
  • ncano (ADRE staff)
    ADRE
    Recipient of transmission
  • c. serrano (Clerical staff)
    Transmitted document
  • F. Del Sol (Clerical staff)
    Transmitted document

Other Participants

  • Debborah Sellers (witness)
    Petitioner's wife, email submitted as evidence

John A Sellers vs. Rancho Madera Condominium Association

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Case Summary

Case ID 19F-H1918010-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium
Additional Citations:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Video Overview

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2025-10-09T03:33:27 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2025-10-09T03:33:27 (129.5 KB)





Briefing Doc – 19F-H1918010-REL


Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”






Study Guide – 19F-H1918010-REL


Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, drawing exclusively from the information provided in the case documents.

1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?

2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.

3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?

4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?

5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?

6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?

7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?

8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?

9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?

10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.

——————————————————————————–

Answer Key

1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.

2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.

3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.

4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.

5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.

6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.

7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.

8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.

9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.

10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.

——————————————————————————–

Suggested Essay Questions

1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.

2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.

3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.

4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?

5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.

Drainage Easement

A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.

Drainage Easement Area

The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.

Drainage Improvements

The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.

Preponderance of the Evidence

The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making a contention more probably true than not.

Rehearing

A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.

The Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.






Blog Post – 19F-H1918010-REL


I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.

The Anatomy of a Neighborhood War

Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.

This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.

A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.

1. Proving a Rule Was Broken Isn’t the Same as Proving Harm

The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”

But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”

The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.

2. An HOA’s “Right” to Enforce Is Not an “Obligation”

After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.

Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”

The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.

“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.

3. Outside Conflicts Can Cast a Long Shadow

Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.

The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.

4. Writing Letters Isn’t the Same as Being Heard

Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.

Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.

The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.

A Cautionary Tale for Any Homeowner

What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.

It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?


Case Participants

Petitioner Side

  • John A Sellers (petitioner)

Respondent Side

  • Edward D. O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Jeffrey Kaplan (HOA President/witness)
    Rancho Madera Condominium Association
    Testified on behalf of Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    OAH
    ALJ for initial proceedings
  • Tammy L. Eigenheer (ALJ)
    OAH
    ALJ for rehearing
  • Judy Lowe (Commissioner)
    ADRE
  • LDettorre (ADRE staff)
    ADRE
    Recipient of transmission
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • DGardner (ADRE staff)
    ADRE
    Recipient of transmission
  • ncano (ADRE staff)
    ADRE
    Recipient of transmission
  • c. serrano (Clerical staff)
    Transmitted document
  • F. Del Sol (Clerical staff)
    Transmitted document

Other Participants

  • Debborah Sellers (witness)
    Petitioner's wife, email submitted as evidence

John L. Shields vs. Will Rogers Equestrian Ranch

Posted on by

Case Summary

Case ID 17F-H1717034-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-02-26
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John L. Shields Counsel —
Respondent Will Rogers Equestrian Ranch Counsel Maria R. Kupillas

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).

Key Issues & Findings

Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.

Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.

Orders: The petition is dismissed and no action is required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • CC&R § 6.2(A)
  • CC&R § 7.2

Analytics Highlights

Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

17F-H1717034-REL-RHG Decision – 619560.pdf

Uploaded 2025-10-08T07:02:21 (90.8 KB)





Briefing Doc – 17F-H1717034-REL-RHG


Briefing Document: Analysis of Administrative Law Judge Decision in Shields v. Will Rogers Equestrian Ranch

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in Case No. 17F-H1717034-REL-RHG, dated February 26, 2018. The central issue was a petition filed by homeowner John L. Shields against the Will Rogers Equestrian Ranch Homeowners’ Association (HOA), alleging the HOA improperly approved a wall extension built by his neighbor, Joe Johnson, without Mr. Shields’ required consent.

The petition was ultimately dismissed. The Administrative Law Judge (ALJ) concluded that the petitioner, Mr. Shields, failed to establish by a preponderance of the evidence that the HOA had violated its Covenants, Conditions, and Restrictions (CC&Rs). The decision rests on a critical distinction between the responsibilities of a homeowner and the responsibilities of the HOA under separate articles of the CC&Rs. The ALJ determined that the obligation to secure an adjoining neighbor’s approval for a wall alteration (under CC&R § 6.2) falls exclusively on the homeowner undertaking the project. In contrast, the HOA’s duty (under CC&R § 7.2) is limited to an aesthetic review of the proposed alteration, which it conducted appropriately. The HOA had no legal obligation to enforce or verify neighbor-to-neighbor approval.

I. Case Overview

Case Name

John L. Shields (Petitioner) vs. Will Rogers Equestrian Ranch (Respondent)

Case Number

17F-H1717034-REL-RHG

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Date of Decision

February 26, 2018

Core Dispute

The petitioner alleged the HOA violated CC&R § 6.2(A) by approving a neighbor’s approximately 5’ x 6’ block wall extension without the petitioner’s consent.

Final Outcome

The petition was dismissed, with no action required of the respondent HOA.

II. Petitioner’s Claim and Arguments

John L. Shields, a homeowner at 20431 E. Bronco Drive within the Will Rogers Equestrian Ranch development, filed a petition against the HOA concerning a wall extension built by his next-door neighbor, Joe Johnson.

• Core Allegation: After vacillating on the specifics of his complaint during the hearing, Mr. Shields firmly asserted that his single issue was that the HOA improperly approved Mr. Johnson’s proposal to build a block wall extension and move his gate forward.

• Basis of Claim: The petitioner argued that under CC&R § 6.2, the HOA should have withheld its approval because Mr. Johnson had not demonstrated that he had first obtained Mr. Shields’ approval for the wall extension between their properties.

• Evidence and Testimony: Mr. Shields denied ever having approved the wall. He submitted a photograph he had taken from his front porch and testified that the block wall extension “was an eyesore.”

III. Respondent’s Position and Evidence

The Will Rogers Equestrian Ranch HOA, represented by board president Kristi Hancock, denied all complaint items and argued its actions were consistent with the governing CC&Rs.

• Basis of Approval: The HOA contended that its approval was based solely on the criteria outlined in CC&R § 7.2. The board, acting as the Architectural Control Committee, reviewed Mr. Johnson’s proposal for its aesthetic qualities and consistency with other properties in the development.

• Aesthetic Review: Ms. Hancock testified that the board inspected other wall extensions and gates and found Mr. Johnson’s proposal to be “aesthetically pleasing and consistent with the other properties.”

• Neighbor Consent Issue: The HOA acknowledged its awareness of Mr. Shields’ objection to the wall after it was built. However, Ms. Hancock testified that the board’s understanding of whether Mr. Shields had approved the wall before construction was unclear. She stated that “at least four witnesses had stated that they heard Petitioner either actually approve of or fail to state an objection to the block wall extension while, in Petitioner’s presence, Mr. Johnson discussed having the block wall extension built.”

• Separation of Duties: The HOA’s position was that its duty under § 7.2 was distinct from the homeowner’s duty under § 6.2. The HOA was not responsible for obtaining or verifying neighbor approval.

IV. Chronology of Key Events

1. October 13, 2016 (approx.): Mr. Johnson has the block wall extension built without first obtaining approval from the HOA’s board or committee.

2. October 16, 2016 (approx.): Mr. Shields expresses his disapproval of the newly built wall to Mr. and Mrs. Johnson.

3. November 2, 2016 (approx.): Mr. Johnson retroactively submits his proposal for the wall extension and a plan to move his gate forward to the Architectural Control Committee for approval.

4. November 2016: The HOA’s newly elected board meets as the Committee and verbally approves Mr. Johnson’s wall but advises him that “he will need to seek neighboring property owner’s approval.”

5. January 2017: The board formally approves Mr. Johnson’s proposal for the wall extension and gate move.

6. May 3, 2017 (approx.): Mr. Shields files a single-issue petition with the Arizona Department of Real Estate.

7. September 27, 2017: An initial hearing is held, and Administrative Law Judge Diane Mihalsky dismisses the petition.

8. December 5, 2017: The Real Estate Commissioner grants Mr. Shields’ request for a rehearing based on his claims of legal errors and judicial misconduct.

9. February 5, 2018: A rehearing is held before Administrative Law Judge Tammy L. Eigenheer.

V. Analysis of Covenants, Conditions, and Restrictions (CC&Rs)

The judge’s decision hinged on the distinct and separate functions of two key CC&R sections.

This section governs alterations to shared fences and walls.

Such Party Walls and Fences shall not be altered, or changed in design, color, material or construction from the original installation made by the Developer without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.

• Interpretation: The ALJ interpreted this section as creating two separate approval requirements for the homeowner making the alteration: one from the adjoining owner and one from the Committee. It does not obligate the Committee to enforce the adjoining owner’s approval.

This section defines the scope and limits of the Architectural Control Committee’s power.

No . . . fences . . . shall be commenced [or] erected . . . until the plans and specifications showing the same shall have been submitted to and approved by the Committee. Approval shall not be unreasonably withheld. However, the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…

• Interpretation: The ALJ found that this section limits the Committee’s review to specific criteria, including aesthetics, harmony with surroundings, and effect on neighboring property. It explicitly states that approval “shall not be unreasonably withheld” and does not require the Committee to verify compliance with other CC&Rs or city ordinances.

VI. Judge’s Conclusions of Law and Rationale for Dismissal

The ALJ’s decision to dismiss the petition was based on a clear legal interpretation of the CC&Rs and the petitioner’s failure to meet the burden of proof.

• Distinct and Separate Obligations: The core of the ruling is that the CC&Rs create parallel but separate responsibilities.

1. Homeowner’s Responsibility: The duty to obtain an adjoining neighbor’s approval for a shared wall alteration under § 6.2(A) rests solely with the homeowner performing the work (Mr. Johnson).

2. HOA’s Responsibility: The HOA’s duty under § 7.2 is limited to reviewing the project on its aesthetic merits and consistency within the community.

• Key Legal Finding: The decision explicitly states the separation of these duties:

• Scope of HOA Review: The ALJ affirmed that the HOA’s scope of review was properly limited.

• Failure to Meet Burden of Proof: Because the HOA acted within the authority and limitations defined by CC&R § 7.2, the petitioner failed to prove by a preponderance of the evidence that the HOA had violated its governing documents.

• Other Responsibilities: The decision also noted that the responsibility for ensuring compliance with City of Queen Creek ordinances (related to the gate move) ultimately rested with Mr. Johnson, not the HOA.

VII. Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge ordered that the petition be dismissed.

• No action is required of the Respondent, Will Rogers Equestrian Ranch HOA.

• The decision, issued as a result of a rehearing, is binding on the parties.

• Any appeal must be filed with the superior court within thirty-five days from the date the order was served.


John L. Shields vs. Will Rogers Equestrian Ranch

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

Case Summary

Case ID 17F-H1717034-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-02-26
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John L. Shields Counsel —
Respondent Will Rogers Equestrian Ranch Counsel Maria R. Kupillas

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).

Key Issues & Findings

Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.

Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.

Orders: The petition is dismissed and no action is required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • CC&R § 6.2(A)
  • CC&R § 7.2

Analytics Highlights

Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

17F-H1717034-REL-RHG Decision – 619560.pdf

Uploaded 2026-01-23T17:20:33 (90.8 KB)

17F-H1717034-REL-RHG Decision – ../17F-H1717034-REL/592935.pdf

Uploaded 2026-01-23T17:20:36 (115.2 KB)





Briefing Doc – 17F-H1717034-REL-RHG


Briefing Document: Shields v. Will Rogers Equestrian Ranch HOA

Executive Summary

This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner John Shields (Petitioner) and the Will Rogers Equestrian Ranch Homeowners’ Association (Respondent). The core of the dispute is a 5-foot by 6-foot common block wall extension constructed by the Petitioner’s neighbor, Joe Johnson. The Petitioner alleged the Respondent violated its own Covenants, Conditions, and Restrictions (CC&Rs) by approving the wall alteration without the Petitioner’s required consent as the adjoining property owner.

Following an initial hearing and a subsequent rehearing, the Office of Administrative Hearings dismissed the Petitioner’s claims. The decisions established several critical legal and procedural points:

• Distinct HOA Obligations: The HOA’s architectural approval role, governed by CC&R § 7.2, is distinct from the neighbor-approval requirement in CC&R § 6.2(A). The HOA’s approval is based solely on aesthetic and community consistency standards and does not obligate it to verify or enforce separate homeowner-to-homeowner agreements or approvals.

• Homeowner Responsibility: The responsibility to obtain an adjoining owner’s approval for a shared wall alteration rests entirely with the homeowner undertaking the construction (in this case, Mr. Johnson), not with the HOA.

• Discretionary Enforcement: The HOA’s power to enforce CC&R violations is discretionary, not mandatory. CC&R § 8.1 uses the permissive term “may,” granting the board latitude in deciding whether to pursue enforcement actions, particularly in cases with conflicting evidence.

• Alternative Remedy: The Petitioner is not without a remedy. The same CC&R section that grants the HOA enforcement power also explicitly authorizes individual owners to bring a private action against another owner to enforce the CC&Rs.

Ultimately, the HOA was found to have acted within its authority as defined by the governing documents, and both petitions against it were dismissed.

I. Case Overview

This matter concerns a petition filed on May 3, 2017, by John Shields with the Arizona Department of Real Estate against his HOA, Will Rogers Equestrian Ranch. The case was referred to the Office of Administrative Hearings for adjudication.

Entity

Details

John Shields

Petitioner

Homeowner at 20431 E. Bronco Drive, Queen Creek, Arizona.

Will Rogers Equestrian Ranch

Respondent

The Homeowners’ Association (HOA) for the development.

Joe and Sandy Johnson

Adjoining Neighbor

Constructed the disputed wall extension between their property and the Petitioner’s.

The Disputed Structure

Wall Extension

An approximately 5-foot long by 6-foot high common block wall extension.

The dispute was adjudicated in two separate hearings:

1. Initial Hearing: Held on September 27, 2017, before Administrative Law Judge (ALJ) Diane Mihalsky. A decision dismissing the petition was issued on October 11, 2017.

2. Rehearing: Granted on December 5, 2017, and held on February 5, 2018, before ALJ Tammy L. Eigenheer. A final decision, again dismissing the petition, was issued on February 26, 2018.

II. Petitioner’s Claim and Central Issue

The Petitioner’s central claim was that the Respondent HOA violated CC&R § 6.2(A) by approving the wall extension built by his neighbor, Joe Johnson, without first securing or verifying the Petitioner’s approval.

• Core Allegation: Any alteration to a shared “Party Wall” requires the approval of both the HOA’s Architectural Control Committee (“the Committee”) and the adjoining owner. The Petitioner asserted he never gave his approval.

• Petitioner’s Testimony: He steadfastly denied ever approving the wall, stating that he expressed his disapproval to the Johnsons on October 16, 2016, three days after its construction. He submitted a photograph and testified the wall “looked like crap” and was an “eyesore.”

• Evolving Argument:

◦ In the first hearing, the Petitioner argued that the HOA was responsible for enforcing the CC&Rs by compelling Mr. Johnson to remove the unapproved wall.

◦ In the rehearing, the Petitioner “vacillated” before firmly asserting his issue was that the HOA had improperly approved Mr. Johnson’s proposal in the first place.

III. Relevant Covenants, Conditions, and Restrictions (CC&Rs)

The decisions in this case hinged on the interpretation and interplay of three specific sections of the Will Rogers Equestrian Ranch CC&Rs.

Section

Key Provision

§ 6.2(A)

Fences as Party Walls

“Such Party Walls and Fences shall not be altered, or changed… without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.”

Review by the Committee

“No … fences … shall be commenced [or] erected … until the plans and specifications … have been submitted to and approved by the Committee. … the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…” It also states the Committee’s approval is not an endorsement of compliance with laws or ordinances.

Effect of Declaration and Remedies

“In the event of any violation… they may be enforced by an action brought by [Respondent], the Committee or by the Owner or Owners… at law or in equity…”

IV. Chronology of Events and Factual Evidence

1. Prior to Oct 13, 2016: Mr. Johnson discussed his plans to build the wall extension to hide his RV on multiple occasions with the Petitioner present.

◦ Conflicting Testimony: A.J. Denardo testified he was present for at least three such conversations and that the Petitioner voiced no objection, even stating the wall “looked good” immediately after it was built. Sandy Johnson testified the Petitioner was present for at least ten discussions and never disapproved, sometimes nodding in apparent approval. The Petitioner denied ever giving approval.

2. On/About Oct 13, 2016: Mr. Johnson constructed the wall extension without prior approval from the Committee.

3. On/About Oct 16, 2016: The Petitioner expressed his disapproval of the wall to Mr. and Mrs. Johnson.

4. On/About Nov 2, 2016: Mr. Johnson retroactively submitted plans for the wall extension and a proposal to move his gate forward to the Committee for approval.

5. Nov 16, 2016: The newly elected HOA board, acting as the Committee, met and verbally approved Mr. Johnson’s wall. They specifically advised him that “he will need to seek neighboring property owner’s approval.”

6. December 2016: The board held an executive session to obtain legal advice on enforcement issues.

7. Jan 18, 2017: At a regular board meeting, the board formally approved Mr. Johnson’s proposal, resolving “to ratify the unanimous written consent received outside this regular meeting.”

8. Post-Approval: The City of Queen Creek notified Mr. Johnson that he could not move his gate forward as proposed, as it violated city codes.

V. Legal Analysis and Rulings

Both administrative law judges ultimately concluded that the HOA had not violated its CC&Rs and dismissed the petition. The reasoning in each decision focused on different facets of the HOA’s duties.

A. First Hearing Decision (ALJ Diane Mihalsky)

The initial ruling focused on the HOA’s role in enforcement.

• Discretionary Power: The decision centered on the word “may” in CC&R § 8.1. Citing case law (Walker v. Wilkinson), the judge found that “may” indicates a permissive intent, while “shall” indicates a mandatory one. Therefore, the CC&Rs gave the Respondent board the option to bring an enforcement action, but did not require it to do so.

• No Abuse of Discretion: The board was aware of the dispute and the conflicting testimony from multiple witnesses regarding the Petitioner’s prior approval (or lack of objection). The board determined it was not its “job to decide who was telling the truth.” Given this conflicting evidence, the judge found that the board’s decision not to pursue enforcement against Mr. Johnson was not an abuse of its discretion.

• Petitioner’s Remedy: The decision explicitly noted that the Petitioner was not without a remedy, as CC&R § 8.1 also authorizes him to file his own action directly against the Johnsons for their alleged violation of CC&R § 6.2(A).

B. Rehearing Decision (ALJ Tammy L. Eigenheer)

The rehearing focused on the Petitioner’s clarified claim that the HOA’s approval of the plans was improper.

• Separate and Distinct Obligations: The judge ruled that CC&R § 6.2(A) and CC&R § 7.2 create separate obligations for separate parties.

◦ § 6.2(A) requires the homeowner (Mr. Johnson) to obtain the adjoining neighbor’s approval.

◦ § 7.2 requires the HOA Committee to review the proposal based only on aesthetic criteria and consistency with the development.

• Limited Scope of Committee Review: The decision states, “Nothing in CC&R § 7.2 requires Respondent to consider whether the adjoining neighbor had approved the block wall extension.” The board’s role was to evaluate if the wall was “aesthetically pleasing and consistent” with other structures, which it did.

• No Erroneous Approval: Because the HOA’s approval process is defined and limited by § 7.2, its decision to approve the wall based on those criteria was not erroneous. The HOA had “no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.”

VI. Final Outcome

The Petitioner’s petition against the Will Rogers Equestrian Ranch HOA was dismissed. The final order from the February 26, 2018, rehearing, which is binding on the parties, concluded that no action was required of the Respondent. The Petitioner failed to establish by a preponderance of the evidence that the HOA had violated its governing documents in either its approval of the wall extension or its decision not to pursue enforcement.






Study Guide – 17F-H1717034-REL-RHG


Study Guide: Shields v. Will Rogers Equestrian Ranch

This guide provides a comprehensive review of the administrative legal dispute between John Shields and the Will Rogers Equestrian Ranch homeowners’ association. It is based on the findings of fact, conclusions of law, and evidence presented in two separate hearings before the Office of Administrative Hearings.

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.

1. Who are the primary parties involved in this legal dispute, and what is their relationship?

2. What specific structure is at the center of the dispute, when was it built, and by whom?

3. According to CC&R § 6.2(A), what two distinct approvals are required before a party wall can be altered?

4. Why did the Respondent’s board state it was unsure whether the Petitioner had approved the wall extension before it was constructed?

5. What criteria did the Architectural Control Committee use when it formally approved the wall extension, as outlined in CC&R § 7.2?

6. Explain the legal significance of the word “may” in CC&R § 8.1 regarding the homeowners’ association’s enforcement duties.

7. On what grounds was the Petitioner, John Shields, granted a rehearing after the initial decision was issued?

8. During the rehearing, what did the Petitioner clarify was his single, primary complaint against the Respondent?

9. What was the final recommended order in both the initial hearing and the subsequent rehearing?

10. According to the first judge’s decision, what other legal remedy is available to the Petitioner to address his grievance against his neighbor?

——————————————————————————–

Answer Key

1. The primary parties are John Shields (the Petitioner) and the Will Rogers Equestrian Ranch homeowners’ association (the Respondent). Mr. Shields is a homeowner and member of the association, and his dispute concerns the association’s handling of a wall built by his next-door neighbor, Joe Johnson.

2. The structure is an approximately 5-foot long by 6-foot high common block wall extension. It was built on or about October 13, 2016, by the Petitioner’s neighbor, Joe Johnson, between their two properties.

3. CC&R § 6.2(A) requires that any alteration to a party wall must have the approval of the adjoining owner(s), if any, as well as the approval of the Architectural Control Committee. Both approvals are necessary.

4. The board was unsure about the Petitioner’s prior approval because at least four witnesses stated they heard the Petitioner either actually approve of the wall or fail to object while Mr. Johnson was discussing plans to build it in his presence. This created a conflict between the Petitioner’s claims and the testimony of others.

5. According to testimony from board member Kristi Hancock, the Committee’s approval was based solely on whether the wall was aesthetically pleasing and consistent with other wall extensions in the development. The Committee’s review under CC&R § 7.2 did not require it to confirm whether the adjoining neighbor had given approval.

6. The first decision concluded that the word “may” in CC&R § 8.1 indicates permissive intent, not a mandatory requirement. This means the association had the discretion, but not the obligation, to bring an enforcement action against Mr. Johnson.

7. A rehearing was granted by Commissioner Judy Lowe because the Petitioner claimed there were errors in the admission or rejection of evidence, other errors of law during the proceeding, and misconduct by the Administrative Law Judge that deprived him of a fair hearing.

8. After some vacillation, the Petitioner firmly asserted during the rehearing that his single issue was that the Respondent had improperly approved Mr. Johnson’s proposal to build the block wall extension and move his gate forward.

9. In both hearings, the recommended order was that no action was required of the Respondent and that the petition should be dismissed.

10. The first decision points out that under CC&R § 8.1, the Petitioner is not without a remedy. This section authorizes an owner, not just the association, to file an action against another owner for an alleged violation of the CC&Rs.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive response to each, citing specific facts, testimony, and CC&R provisions from the source documents.

1. Analyze the differing responsibilities of the homeowner (Mr. Johnson), the adjoining neighbor (Mr. Shields), and the homeowners’ association (the Respondent) as outlined in CC&Rs § 6.2(A), § 7.2, and § 8.1. How do these distinct roles and responsibilities intersect and conflict in this case?

2. Compare and contrast the evidence and testimony presented in the first hearing (before ALJ Diane Mihalsky) with the focus of the second hearing (before ALJ Tammy L. Eigenheer). How did the Petitioner’s framing of his central argument change between the two proceedings?

3. Discuss the legal standard “preponderance of the evidence” as it is defined and applied in this case. Explain how the conflicting testimony regarding the Petitioner’s “tacit approval” influenced the Respondent’s decision-making and, ultimately, the Administrative Law Judges’ conclusions.

4. Evaluate the Respondent’s decision-making process regarding the approval of the wall extension. Consider the timeline of events from the wall’s unapproved construction in October 2016 to the formal ratification in January 2017, the conditional verbal approval, and the rationale provided by board members for their actions.

5. The first decision explicitly states that CC&R § 8.1 gives the Petitioner a separate remedy against his neighbor. Based on the information in both documents, construct the legal argument the Petitioner could make in a direct action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, takes evidence, and makes decisions or recommendations on legal and factual issues. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.

Architectural Control Committee (The Committee)

A body within the homeowners’ association responsible for reviewing and approving or disapproving proposed alterations to properties, such as fences, based on aesthetic and other considerations as outlined in the CC&Rs. In this case, the board itself acted as the Committee.

Arizona Department of Real Estate (The Department)

The state agency with which the Petitioner initially filed his petition concerning violations of planned community documents. The Department then referred the matter to the Office of Administrative Hearings.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish that the Respondent violated the CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the rights and obligations of the homeowners’ association and its members. The key sections referenced are 6.2(A), 7.2, and 8.1.

Office of Administrative Hearings

The independent state agency responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the one between Shields and the Will Rogers Equestrian Ranch.

Party Wall

A wall built on the boundary line between two adjoining properties, for the common benefit of both owners. CC&R § 6.2(A) governs the alteration of such walls.

Permissive Intent

A legal interpretation of language, such as the word “may,” which indicates that an action is allowed or discretionary but not required. This was central to the interpretation of CC&R § 8.1.

Petitioner

The party who initiates a legal action or petition. In this case, John Shields is the Petitioner.

Preponderance of the Evidence

The standard of proof in this civil administrative case, defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not.

Rehearing

A second hearing of a case, granted in this instance because the Petitioner alleged errors of law and misconduct by the judge in the first proceeding.

Respondent

The party against whom a petition is filed. In this case, the Will Rogers Equestrian Ranch homeowners’ association is the Respondent.

Tacit Approval

Approval that is implied or inferred from actions or from a failure to state an objection, rather than being explicitly stated. Witnesses claimed the Petitioner gave tacit approval to the wall before it was built.






Blog Post – 17F-H1717034-REL-RHG


4 Surprising Lessons From a Neighbor’s Ugly Wall and the HOA That Did Nothing

Introduction: The Homeowner’s Dilemma

In the world of community governance, the gap between homeowner expectation and contractual reality is a fertile ground for conflict. Most people assume their Homeowners’ Association (HOA) exists to be their first line of defense in a neighbor dispute; when a rule is broken, the HOA is expected to step in. But what happens when the HOA decides to do nothing?

This was the exact situation faced by homeowner John Shields, who was appalled when his neighbor, Joe Johnson, built a block wall extension he considered an eyesore. Mr. Shields turned to his HOA, Will Rogers Equestrian Ranch, expecting them to force its removal. The legal battle that followed provides a fascinating case study, revealing surprising realities about the power and obligations of an HOA. For any homeowner in a planned community, the takeaways are as counter-intuitive as they are crucial.

1. Your HOA Isn’t Obligated to Be Your Enforcer

Mr. Shields’s primary argument rested on a common but often mistaken assumption: that an HOA has a strict mandate to enforce every rule. His logic was straightforward: the community’s Covenants, Conditions, and Restrictions (CC&Rs) required his approval for the wall extension. Since he never gave it, he believed the HOA was responsible for forcing his neighbor to tear the wall down.

The court, however, pointed to a different section of the CC&Rs (§ 8.1) which stated that the rules may be enforced by the HOA. This single word was the linchpin of the case. The Administrative Law Judge highlighted the critical legal distinction between a permissive option and a mandatory duty.

“[The] use of the word ‘may’ generally indicates permissive intent . . . while ‘shall’ generally indicates a mandatory provision.”

This gave the HOA discretion on whether to act. Because there was conflicting testimony about whether Mr. Shields had given tacit approval beforehand, the court found that the HOA “did not abuse its discretion by declining to bring an enforcement action.” The lesson is clear: your HOA’s governing documents might grant it the right to enforce rules without creating an obligation to do so in every single case.

2. The HOA’s “Approval” Might Not Mean What You Think

Adding another layer to the conflict, Mr. Johnson submitted plans for the wall and a related gate relocation to the HOA’s Architectural Control Committee after the wall was already built. The Committee ultimately approved it. To Mr. Shields, this seemed like the HOA was siding with his neighbor and ignoring his rights.

But the Committee’s review was far narrower than he assumed. According to CC&R § 7.2, their analysis was limited to whether the wall was “esthetically pleasing and consistent with other wall extensions that had been built in the Will Rogers Equestrian Ranch development.” The Committee wasn’t tasked with policing neighbor-to-neighbor agreements.

A formal rehearing—granted after the petitioner alleged “errors of law”—clarified this crucial point. The judge found that under CC&R § 6.2(A), it was Mr. Johnson’s responsibility to get his neighbor’s approval, not the HOA’s. As the decision stated, “Respondent had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.” This separation of duties is common in governing documents, as it strategically shields the HOA from liability in member disputes while allowing it to maintain aesthetic control over the community.

3. Your Silence Can Be Used Against You

The case devolved into a classic “he said, she said” scenario that ultimately weakened Mr. Shields’s position. He testified that he never approved the wall and, on October 16, 2016—three days after it was built—told his neighbors he disapproved, calling it an “eyesore” that “looked like crap.”

However, other witnesses told a different story. One, Mr. Denardo, testified that Mr. Shields “did not voice any objection” before the wall was constructed and even said it “looked good” immediately after. The neighbor’s wife, Mrs. Johnson, testified that Mr. Shields was present for at least ten discussions about the wall, “had never voiced any disapproval,” and had “sometimes nodded, apparently indicating his approval.”

This conflicting testimony was the direct basis for the board invoking its discretionary power. A board member testified that because of the conflicting accounts, the board “was less sure about whether Petitioner had actually or tacitly approved the block wall extension before it was built.” This uncertainty was the key factor that led them not to intervene. When it comes to property matters, clear, timely, and preferably documented communication is your strongest asset; ambiguity and silence can be interpreted as consent.

4. When the HOA Steps Aside, the Fight Might Be Yours Alone

While the court dismissed the petition against the HOA, it did not leave Mr. Shields without a path forward. The judge pointed to the very same rule that gave the HOA its discretion—CC&R § 8.1—as a source of the homeowner’s power. This rule proved to be a double-edged sword.

The judge’s first decision stated that CC&R § 8.1 “authorizes Petitioner to file an action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).” The same clause that gave the HOA the discretion to step aside also explicitly empowered individual homeowners to act in the HOA’s stead.

When an association chooses to stay out of a member-to-member dispute, the responsibility—and the power—to enforce the community’s rules can fall directly to the affected homeowner. The HOA’s inaction does not mean a rule can’t be enforced; it just means you may have to be the one to do it by bringing a private legal action against your neighbor.

Conclusion: Read Your Fine Print

The story of the ugly wall serves as a powerful reminder that a homeowner’s assumptions about their HOA’s power can be miles apart from the legal reality written into the CC&Rs. This case perfectly illustrates the interplay between an HOA’s discretionary enforcement powers (Lesson 1), its carefully separated procedural duties (Lesson 2), the critical importance of homeowner communication and proof (Lesson 3), and the ultimate empowerment of members to enforce rules themselves (Lesson 4). These documents are not just a list of rules; they are a legal framework that dictates who has the power to act, when they are obligated to do so, and what recourse you have when a conflict arises.

You might know your community’s rules on trash cans and lawn care, but do you know who is truly responsible for enforcing them when a real dispute arises?


Case Participants

Petitioner Side

  • John Shields (petitioner)

Respondent Side

  • Maria R. Kupillas (HOA attorney)
    Law Offices of Farley Choate & Bergin
    Represented Respondent Will Rogers Equestrian Ranch
  • Dean Kabanuk (board president)
    Will Rogers Equestrian Ranch Board
    Testified for Petitioner via subpoena; elected President Nov 2016
  • Kristi Hancock (board member/witness)
    Will Rogers Equestrian Ranch Board
    Served as Vice President (Nov 2016-Nov 2017) and President (since Nov 2017)
  • Brenda Campbell (community manager)
    Will Rogers Equestrian Ranch
    Witness for Respondent
  • A.J. Denardo (witness)
    Not a member of Respondent; lives near Petitioner
  • Sandy Johnson (witness/neighbor)
    Wife of Joe Johnson; Petitioner's next-door neighbor
  • Joe Johnson (neighbor/homeowner)
    Will Rogers Equestrian Ranch
    Built the block wall extension in question

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    Issued initial ALJ Decision
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Issued ALJ Decision following rehearing
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Granted Petitioner's request for rehearing

Other Participants

  • Felicia Del Sol (staff)
    Transmitted the decision

John L. Shields vs. Will Rogers Equestrian Ranch

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

Case Summary

Case ID 17F-H1717034-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-02-26
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John L. Shields Counsel —
Respondent Will Rogers Equestrian Ranch Counsel Maria R. Kupillas

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

The Administrative Law Judge dismissed the petition. It was determined that the Respondent (HOA) did not err in approving the neighbor's wall extension proposal, as the responsibility for obtaining adjoining owner approval under CC&R § 6.2(A) lay solely with the neighboring owner, not the HOA. The HOA's approval under CC&R § 7.2 only required considering aesthetic compliance.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the neighbor's proposal. The HOA was only required by CC&R § 7.2 to consider aesthetics when approving alterations, and neighbor approval (required by CC&R § 6.2(A)) was the sole responsibility of the building owner, not the HOA.

Key Issues & Findings

Respondent improperly approved a block wall extension built by a neighbor without securing Petitioner's required adjoining owner approval.

Petitioner alleged the HOA violated its CC&Rs by formally approving a neighbor's block wall extension (approximately 5' long x 6' high) because Petitioner, the adjoining property owner, had not approved the wall as required by CC&R § 6.2(A).

Orders: The petition was dismissed, and no action was required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&R § 6.2(A)
  • CC&R § 7.2
  • A.R.S. § 32-2199.01

Analytics Highlights

Topics: HOA, CC&Rs, Architectural Review, Block Wall
Additional Citations:

  • A.R.S. § 32-2199.01

Video Overview

Audio Overview

Decision Documents

17F-H1717034-REL-RHG Decision – 619560.pdf

Uploaded 2025-10-09T03:31:41 (90.8 KB)

17F-H1717034-REL-RHG Decision – ../17F-H1717034-REL/592935.pdf

Uploaded 2026-01-20T13:44:32 (115.2 KB)





Briefing Doc – 17F-H1717034-REL-RHG


Briefing Document: Shields v. Will Rogers Equestrian Ranch HOA

Executive Summary

This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner John Shields (Petitioner) and the Will Rogers Equestrian Ranch Homeowners’ Association (Respondent). The core of the dispute is a 5-foot by 6-foot common block wall extension constructed by the Petitioner’s neighbor, Joe Johnson. The Petitioner alleged the Respondent violated its own Covenants, Conditions, and Restrictions (CC&Rs) by approving the wall alteration without the Petitioner’s required consent as the adjoining property owner.

Following an initial hearing and a subsequent rehearing, the Office of Administrative Hearings dismissed the Petitioner’s claims. The decisions established several critical legal and procedural points:

• Distinct HOA Obligations: The HOA’s architectural approval role, governed by CC&R § 7.2, is distinct from the neighbor-approval requirement in CC&R § 6.2(A). The HOA’s approval is based solely on aesthetic and community consistency standards and does not obligate it to verify or enforce separate homeowner-to-homeowner agreements or approvals.

• Homeowner Responsibility: The responsibility to obtain an adjoining owner’s approval for a shared wall alteration rests entirely with the homeowner undertaking the construction (in this case, Mr. Johnson), not with the HOA.

• Discretionary Enforcement: The HOA’s power to enforce CC&R violations is discretionary, not mandatory. CC&R § 8.1 uses the permissive term “may,” granting the board latitude in deciding whether to pursue enforcement actions, particularly in cases with conflicting evidence.

• Alternative Remedy: The Petitioner is not without a remedy. The same CC&R section that grants the HOA enforcement power also explicitly authorizes individual owners to bring a private action against another owner to enforce the CC&Rs.

Ultimately, the HOA was found to have acted within its authority as defined by the governing documents, and both petitions against it were dismissed.

I. Case Overview

This matter concerns a petition filed on May 3, 2017, by John Shields with the Arizona Department of Real Estate against his HOA, Will Rogers Equestrian Ranch. The case was referred to the Office of Administrative Hearings for adjudication.

Entity

Details

John Shields

Petitioner

Homeowner at 20431 E. Bronco Drive, Queen Creek, Arizona.

Will Rogers Equestrian Ranch

Respondent

The Homeowners’ Association (HOA) for the development.

Joe and Sandy Johnson

Adjoining Neighbor

Constructed the disputed wall extension between their property and the Petitioner’s.

The Disputed Structure

Wall Extension

An approximately 5-foot long by 6-foot high common block wall extension.

The dispute was adjudicated in two separate hearings:

1. Initial Hearing: Held on September 27, 2017, before Administrative Law Judge (ALJ) Diane Mihalsky. A decision dismissing the petition was issued on October 11, 2017.

2. Rehearing: Granted on December 5, 2017, and held on February 5, 2018, before ALJ Tammy L. Eigenheer. A final decision, again dismissing the petition, was issued on February 26, 2018.

II. Petitioner’s Claim and Central Issue

The Petitioner’s central claim was that the Respondent HOA violated CC&R § 6.2(A) by approving the wall extension built by his neighbor, Joe Johnson, without first securing or verifying the Petitioner’s approval.

• Core Allegation: Any alteration to a shared “Party Wall” requires the approval of both the HOA’s Architectural Control Committee (“the Committee”) and the adjoining owner. The Petitioner asserted he never gave his approval.

• Petitioner’s Testimony: He steadfastly denied ever approving the wall, stating that he expressed his disapproval to the Johnsons on October 16, 2016, three days after its construction. He submitted a photograph and testified the wall “looked like crap” and was an “eyesore.”

• Evolving Argument:

◦ In the first hearing, the Petitioner argued that the HOA was responsible for enforcing the CC&Rs by compelling Mr. Johnson to remove the unapproved wall.

◦ In the rehearing, the Petitioner “vacillated” before firmly asserting his issue was that the HOA had improperly approved Mr. Johnson’s proposal in the first place.

III. Relevant Covenants, Conditions, and Restrictions (CC&Rs)

The decisions in this case hinged on the interpretation and interplay of three specific sections of the Will Rogers Equestrian Ranch CC&Rs.

Section

Key Provision

§ 6.2(A)

Fences as Party Walls

“Such Party Walls and Fences shall not be altered, or changed… without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.”

Review by the Committee

“No … fences … shall be commenced [or] erected … until the plans and specifications … have been submitted to and approved by the Committee. … the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…” It also states the Committee’s approval is not an endorsement of compliance with laws or ordinances.

Effect of Declaration and Remedies

“In the event of any violation… they may be enforced by an action brought by [Respondent], the Committee or by the Owner or Owners… at law or in equity…”

IV. Chronology of Events and Factual Evidence

1. Prior to Oct 13, 2016: Mr. Johnson discussed his plans to build the wall extension to hide his RV on multiple occasions with the Petitioner present.

◦ Conflicting Testimony: A.J. Denardo testified he was present for at least three such conversations and that the Petitioner voiced no objection, even stating the wall “looked good” immediately after it was built. Sandy Johnson testified the Petitioner was present for at least ten discussions and never disapproved, sometimes nodding in apparent approval. The Petitioner denied ever giving approval.

2. On/About Oct 13, 2016: Mr. Johnson constructed the wall extension without prior approval from the Committee.

3. On/About Oct 16, 2016: The Petitioner expressed his disapproval of the wall to Mr. and Mrs. Johnson.

4. On/About Nov 2, 2016: Mr. Johnson retroactively submitted plans for the wall extension and a proposal to move his gate forward to the Committee for approval.

5. Nov 16, 2016: The newly elected HOA board, acting as the Committee, met and verbally approved Mr. Johnson’s wall. They specifically advised him that “he will need to seek neighboring property owner’s approval.”

6. December 2016: The board held an executive session to obtain legal advice on enforcement issues.

7. Jan 18, 2017: At a regular board meeting, the board formally approved Mr. Johnson’s proposal, resolving “to ratify the unanimous written consent received outside this regular meeting.”

8. Post-Approval: The City of Queen Creek notified Mr. Johnson that he could not move his gate forward as proposed, as it violated city codes.

V. Legal Analysis and Rulings

Both administrative law judges ultimately concluded that the HOA had not violated its CC&Rs and dismissed the petition. The reasoning in each decision focused on different facets of the HOA’s duties.

A. First Hearing Decision (ALJ Diane Mihalsky)

The initial ruling focused on the HOA’s role in enforcement.

• Discretionary Power: The decision centered on the word “may” in CC&R § 8.1. Citing case law (Walker v. Wilkinson), the judge found that “may” indicates a permissive intent, while “shall” indicates a mandatory one. Therefore, the CC&Rs gave the Respondent board the option to bring an enforcement action, but did not require it to do so.

• No Abuse of Discretion: The board was aware of the dispute and the conflicting testimony from multiple witnesses regarding the Petitioner’s prior approval (or lack of objection). The board determined it was not its “job to decide who was telling the truth.” Given this conflicting evidence, the judge found that the board’s decision not to pursue enforcement against Mr. Johnson was not an abuse of its discretion.

• Petitioner’s Remedy: The decision explicitly noted that the Petitioner was not without a remedy, as CC&R § 8.1 also authorizes him to file his own action directly against the Johnsons for their alleged violation of CC&R § 6.2(A).

B. Rehearing Decision (ALJ Tammy L. Eigenheer)

The rehearing focused on the Petitioner’s clarified claim that the HOA’s approval of the plans was improper.

• Separate and Distinct Obligations: The judge ruled that CC&R § 6.2(A) and CC&R § 7.2 create separate obligations for separate parties.

◦ § 6.2(A) requires the homeowner (Mr. Johnson) to obtain the adjoining neighbor’s approval.

◦ § 7.2 requires the HOA Committee to review the proposal based only on aesthetic criteria and consistency with the development.

• Limited Scope of Committee Review: The decision states, “Nothing in CC&R § 7.2 requires Respondent to consider whether the adjoining neighbor had approved the block wall extension.” The board’s role was to evaluate if the wall was “aesthetically pleasing and consistent” with other structures, which it did.

• No Erroneous Approval: Because the HOA’s approval process is defined and limited by § 7.2, its decision to approve the wall based on those criteria was not erroneous. The HOA had “no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.”

VI. Final Outcome

The Petitioner’s petition against the Will Rogers Equestrian Ranch HOA was dismissed. The final order from the February 26, 2018, rehearing, which is binding on the parties, concluded that no action was required of the Respondent. The Petitioner failed to establish by a preponderance of the evidence that the HOA had violated its governing documents in either its approval of the wall extension or its decision not to pursue enforcement.






Study Guide – 17F-H1717034-REL-RHG


Study Guide: Shields v. Will Rogers Equestrian Ranch

This guide provides a comprehensive review of the administrative legal dispute between John Shields and the Will Rogers Equestrian Ranch homeowners’ association. It is based on the findings of fact, conclusions of law, and evidence presented in two separate hearings before the Office of Administrative Hearings.

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.

1. Who are the primary parties involved in this legal dispute, and what is their relationship?

2. What specific structure is at the center of the dispute, when was it built, and by whom?

3. According to CC&R § 6.2(A), what two distinct approvals are required before a party wall can be altered?

4. Why did the Respondent’s board state it was unsure whether the Petitioner had approved the wall extension before it was constructed?

5. What criteria did the Architectural Control Committee use when it formally approved the wall extension, as outlined in CC&R § 7.2?

6. Explain the legal significance of the word “may” in CC&R § 8.1 regarding the homeowners’ association’s enforcement duties.

7. On what grounds was the Petitioner, John Shields, granted a rehearing after the initial decision was issued?

8. During the rehearing, what did the Petitioner clarify was his single, primary complaint against the Respondent?

9. What was the final recommended order in both the initial hearing and the subsequent rehearing?

10. According to the first judge’s decision, what other legal remedy is available to the Petitioner to address his grievance against his neighbor?

——————————————————————————–

Answer Key

1. The primary parties are John Shields (the Petitioner) and the Will Rogers Equestrian Ranch homeowners’ association (the Respondent). Mr. Shields is a homeowner and member of the association, and his dispute concerns the association’s handling of a wall built by his next-door neighbor, Joe Johnson.

2. The structure is an approximately 5-foot long by 6-foot high common block wall extension. It was built on or about October 13, 2016, by the Petitioner’s neighbor, Joe Johnson, between their two properties.

3. CC&R § 6.2(A) requires that any alteration to a party wall must have the approval of the adjoining owner(s), if any, as well as the approval of the Architectural Control Committee. Both approvals are necessary.

4. The board was unsure about the Petitioner’s prior approval because at least four witnesses stated they heard the Petitioner either actually approve of the wall or fail to object while Mr. Johnson was discussing plans to build it in his presence. This created a conflict between the Petitioner’s claims and the testimony of others.

5. According to testimony from board member Kristi Hancock, the Committee’s approval was based solely on whether the wall was aesthetically pleasing and consistent with other wall extensions in the development. The Committee’s review under CC&R § 7.2 did not require it to confirm whether the adjoining neighbor had given approval.

6. The first decision concluded that the word “may” in CC&R § 8.1 indicates permissive intent, not a mandatory requirement. This means the association had the discretion, but not the obligation, to bring an enforcement action against Mr. Johnson.

7. A rehearing was granted by Commissioner Judy Lowe because the Petitioner claimed there were errors in the admission or rejection of evidence, other errors of law during the proceeding, and misconduct by the Administrative Law Judge that deprived him of a fair hearing.

8. After some vacillation, the Petitioner firmly asserted during the rehearing that his single issue was that the Respondent had improperly approved Mr. Johnson’s proposal to build the block wall extension and move his gate forward.

9. In both hearings, the recommended order was that no action was required of the Respondent and that the petition should be dismissed.

10. The first decision points out that under CC&R § 8.1, the Petitioner is not without a remedy. This section authorizes an owner, not just the association, to file an action against another owner for an alleged violation of the CC&Rs.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive response to each, citing specific facts, testimony, and CC&R provisions from the source documents.

1. Analyze the differing responsibilities of the homeowner (Mr. Johnson), the adjoining neighbor (Mr. Shields), and the homeowners’ association (the Respondent) as outlined in CC&Rs § 6.2(A), § 7.2, and § 8.1. How do these distinct roles and responsibilities intersect and conflict in this case?

2. Compare and contrast the evidence and testimony presented in the first hearing (before ALJ Diane Mihalsky) with the focus of the second hearing (before ALJ Tammy L. Eigenheer). How did the Petitioner’s framing of his central argument change between the two proceedings?

3. Discuss the legal standard “preponderance of the evidence” as it is defined and applied in this case. Explain how the conflicting testimony regarding the Petitioner’s “tacit approval” influenced the Respondent’s decision-making and, ultimately, the Administrative Law Judges’ conclusions.

4. Evaluate the Respondent’s decision-making process regarding the approval of the wall extension. Consider the timeline of events from the wall’s unapproved construction in October 2016 to the formal ratification in January 2017, the conditional verbal approval, and the rationale provided by board members for their actions.

5. The first decision explicitly states that CC&R § 8.1 gives the Petitioner a separate remedy against his neighbor. Based on the information in both documents, construct the legal argument the Petitioner could make in a direct action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, takes evidence, and makes decisions or recommendations on legal and factual issues. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.

Architectural Control Committee (The Committee)

A body within the homeowners’ association responsible for reviewing and approving or disapproving proposed alterations to properties, such as fences, based on aesthetic and other considerations as outlined in the CC&Rs. In this case, the board itself acted as the Committee.

Arizona Department of Real Estate (The Department)

The state agency with which the Petitioner initially filed his petition concerning violations of planned community documents. The Department then referred the matter to the Office of Administrative Hearings.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof to establish that the Respondent violated the CC&Rs.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the rights and obligations of the homeowners’ association and its members. The key sections referenced are 6.2(A), 7.2, and 8.1.

Office of Administrative Hearings

The independent state agency responsible for conducting evidentiary hearings for disputes referred by other state agencies, such as the one between Shields and the Will Rogers Equestrian Ranch.

Party Wall

A wall built on the boundary line between two adjoining properties, for the common benefit of both owners. CC&R § 6.2(A) governs the alteration of such walls.

Permissive Intent

A legal interpretation of language, such as the word “may,” which indicates that an action is allowed or discretionary but not required. This was central to the interpretation of CC&R § 8.1.

Petitioner

The party who initiates a legal action or petition. In this case, John Shields is the Petitioner.

Preponderance of the Evidence

The standard of proof in this civil administrative case, defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not.

Rehearing

A second hearing of a case, granted in this instance because the Petitioner alleged errors of law and misconduct by the judge in the first proceeding.

Respondent

The party against whom a petition is filed. In this case, the Will Rogers Equestrian Ranch homeowners’ association is the Respondent.

Tacit Approval

Approval that is implied or inferred from actions or from a failure to state an objection, rather than being explicitly stated. Witnesses claimed the Petitioner gave tacit approval to the wall before it was built.






Blog Post – 17F-H1717034-REL-RHG


4 Surprising Lessons From a Neighbor’s Ugly Wall and the HOA That Did Nothing

Introduction: The Homeowner’s Dilemma

In the world of community governance, the gap between homeowner expectation and contractual reality is a fertile ground for conflict. Most people assume their Homeowners’ Association (HOA) exists to be their first line of defense in a neighbor dispute; when a rule is broken, the HOA is expected to step in. But what happens when the HOA decides to do nothing?

This was the exact situation faced by homeowner John Shields, who was appalled when his neighbor, Joe Johnson, built a block wall extension he considered an eyesore. Mr. Shields turned to his HOA, Will Rogers Equestrian Ranch, expecting them to force its removal. The legal battle that followed provides a fascinating case study, revealing surprising realities about the power and obligations of an HOA. For any homeowner in a planned community, the takeaways are as counter-intuitive as they are crucial.

1. Your HOA Isn’t Obligated to Be Your Enforcer

Mr. Shields’s primary argument rested on a common but often mistaken assumption: that an HOA has a strict mandate to enforce every rule. His logic was straightforward: the community’s Covenants, Conditions, and Restrictions (CC&Rs) required his approval for the wall extension. Since he never gave it, he believed the HOA was responsible for forcing his neighbor to tear the wall down.

The court, however, pointed to a different section of the CC&Rs (§ 8.1) which stated that the rules may be enforced by the HOA. This single word was the linchpin of the case. The Administrative Law Judge highlighted the critical legal distinction between a permissive option and a mandatory duty.

“[The] use of the word ‘may’ generally indicates permissive intent . . . while ‘shall’ generally indicates a mandatory provision.”

This gave the HOA discretion on whether to act. Because there was conflicting testimony about whether Mr. Shields had given tacit approval beforehand, the court found that the HOA “did not abuse its discretion by declining to bring an enforcement action.” The lesson is clear: your HOA’s governing documents might grant it the right to enforce rules without creating an obligation to do so in every single case.

2. The HOA’s “Approval” Might Not Mean What You Think

Adding another layer to the conflict, Mr. Johnson submitted plans for the wall and a related gate relocation to the HOA’s Architectural Control Committee after the wall was already built. The Committee ultimately approved it. To Mr. Shields, this seemed like the HOA was siding with his neighbor and ignoring his rights.

But the Committee’s review was far narrower than he assumed. According to CC&R § 7.2, their analysis was limited to whether the wall was “esthetically pleasing and consistent with other wall extensions that had been built in the Will Rogers Equestrian Ranch development.” The Committee wasn’t tasked with policing neighbor-to-neighbor agreements.

A formal rehearing—granted after the petitioner alleged “errors of law”—clarified this crucial point. The judge found that under CC&R § 6.2(A), it was Mr. Johnson’s responsibility to get his neighbor’s approval, not the HOA’s. As the decision stated, “Respondent had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.” This separation of duties is common in governing documents, as it strategically shields the HOA from liability in member disputes while allowing it to maintain aesthetic control over the community.

3. Your Silence Can Be Used Against You

The case devolved into a classic “he said, she said” scenario that ultimately weakened Mr. Shields’s position. He testified that he never approved the wall and, on October 16, 2016—three days after it was built—told his neighbors he disapproved, calling it an “eyesore” that “looked like crap.”

However, other witnesses told a different story. One, Mr. Denardo, testified that Mr. Shields “did not voice any objection” before the wall was constructed and even said it “looked good” immediately after. The neighbor’s wife, Mrs. Johnson, testified that Mr. Shields was present for at least ten discussions about the wall, “had never voiced any disapproval,” and had “sometimes nodded, apparently indicating his approval.”

This conflicting testimony was the direct basis for the board invoking its discretionary power. A board member testified that because of the conflicting accounts, the board “was less sure about whether Petitioner had actually or tacitly approved the block wall extension before it was built.” This uncertainty was the key factor that led them not to intervene. When it comes to property matters, clear, timely, and preferably documented communication is your strongest asset; ambiguity and silence can be interpreted as consent.

4. When the HOA Steps Aside, the Fight Might Be Yours Alone

While the court dismissed the petition against the HOA, it did not leave Mr. Shields without a path forward. The judge pointed to the very same rule that gave the HOA its discretion—CC&R § 8.1—as a source of the homeowner’s power. This rule proved to be a double-edged sword.

The judge’s first decision stated that CC&R § 8.1 “authorizes Petitioner to file an action against Mr. and Mrs. Johnson for their alleged violation of CC&R § 6.2(A).” The same clause that gave the HOA the discretion to step aside also explicitly empowered individual homeowners to act in the HOA’s stead.

When an association chooses to stay out of a member-to-member dispute, the responsibility—and the power—to enforce the community’s rules can fall directly to the affected homeowner. The HOA’s inaction does not mean a rule can’t be enforced; it just means you may have to be the one to do it by bringing a private legal action against your neighbor.

Conclusion: Read Your Fine Print

The story of the ugly wall serves as a powerful reminder that a homeowner’s assumptions about their HOA’s power can be miles apart from the legal reality written into the CC&Rs. This case perfectly illustrates the interplay between an HOA’s discretionary enforcement powers (Lesson 1), its carefully separated procedural duties (Lesson 2), the critical importance of homeowner communication and proof (Lesson 3), and the ultimate empowerment of members to enforce rules themselves (Lesson 4). These documents are not just a list of rules; they are a legal framework that dictates who has the power to act, when they are obligated to do so, and what recourse you have when a conflict arises.

You might know your community’s rules on trash cans and lawn care, but do you know who is truly responsible for enforcing them when a real dispute arises?


Case Participants

Petitioner Side

  • John Shields (petitioner)

Respondent Side

  • Maria R. Kupillas (HOA attorney)
    Law Offices of Farley Choate & Bergin
    Represented Respondent Will Rogers Equestrian Ranch
  • Dean Kabanuk (board president)
    Will Rogers Equestrian Ranch Board
    Testified for Petitioner via subpoena; elected President Nov 2016
  • Kristi Hancock (board member/witness)
    Will Rogers Equestrian Ranch Board
    Served as Vice President (Nov 2016-Nov 2017) and President (since Nov 2017)
  • Brenda Campbell (community manager)
    Will Rogers Equestrian Ranch
    Witness for Respondent
  • A.J. Denardo (witness)
    Not a member of Respondent; lives near Petitioner
  • Sandy Johnson (witness/neighbor)
    Wife of Joe Johnson; Petitioner's next-door neighbor
  • Joe Johnson (neighbor/homeowner)
    Will Rogers Equestrian Ranch
    Built the block wall extension in question

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    Issued initial ALJ Decision
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Issued ALJ Decision following rehearing
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Granted Petitioner's request for rehearing

Other Participants

  • Felicia Del Sol (staff)
    Transmitted the decision

John L. Shields vs. Will Rogers Equestrian Ranch

Posted on by

Case Summary

Case ID 17F-H1717034-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-02-26
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John L. Shields Counsel —
Respondent Will Rogers Equestrian Ranch Counsel Maria R. Kupillas

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).

Key Issues & Findings

Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.

Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.

Orders: The petition is dismissed and no action is required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • CC&R § 6.2(A)
  • CC&R § 7.2

Analytics Highlights

Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

17F-H1717034-REL-RHG Decision – 619560.pdf

Uploaded 2025-10-08T06:58:07 (90.8 KB)





Briefing Doc – 17F-H1717034-REL-RHG


Briefing Document: Analysis of Administrative Law Judge Decision in Shields v. Will Rogers Equestrian Ranch

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in Case No. 17F-H1717034-REL-RHG, dated February 26, 2018. The central issue was a petition filed by homeowner John L. Shields against the Will Rogers Equestrian Ranch Homeowners’ Association (HOA), alleging the HOA improperly approved a wall extension built by his neighbor, Joe Johnson, without Mr. Shields’ required consent.

The petition was ultimately dismissed. The Administrative Law Judge (ALJ) concluded that the petitioner, Mr. Shields, failed to establish by a preponderance of the evidence that the HOA had violated its Covenants, Conditions, and Restrictions (CC&Rs). The decision rests on a critical distinction between the responsibilities of a homeowner and the responsibilities of the HOA under separate articles of the CC&Rs. The ALJ determined that the obligation to secure an adjoining neighbor’s approval for a wall alteration (under CC&R § 6.2) falls exclusively on the homeowner undertaking the project. In contrast, the HOA’s duty (under CC&R § 7.2) is limited to an aesthetic review of the proposed alteration, which it conducted appropriately. The HOA had no legal obligation to enforce or verify neighbor-to-neighbor approval.

I. Case Overview

Case Name

John L. Shields (Petitioner) vs. Will Rogers Equestrian Ranch (Respondent)

Case Number

17F-H1717034-REL-RHG

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Date of Decision

February 26, 2018

Core Dispute

The petitioner alleged the HOA violated CC&R § 6.2(A) by approving a neighbor’s approximately 5’ x 6’ block wall extension without the petitioner’s consent.

Final Outcome

The petition was dismissed, with no action required of the respondent HOA.

II. Petitioner’s Claim and Arguments

John L. Shields, a homeowner at 20431 E. Bronco Drive within the Will Rogers Equestrian Ranch development, filed a petition against the HOA concerning a wall extension built by his next-door neighbor, Joe Johnson.

• Core Allegation: After vacillating on the specifics of his complaint during the hearing, Mr. Shields firmly asserted that his single issue was that the HOA improperly approved Mr. Johnson’s proposal to build a block wall extension and move his gate forward.

• Basis of Claim: The petitioner argued that under CC&R § 6.2, the HOA should have withheld its approval because Mr. Johnson had not demonstrated that he had first obtained Mr. Shields’ approval for the wall extension between their properties.

• Evidence and Testimony: Mr. Shields denied ever having approved the wall. He submitted a photograph he had taken from his front porch and testified that the block wall extension “was an eyesore.”

III. Respondent’s Position and Evidence

The Will Rogers Equestrian Ranch HOA, represented by board president Kristi Hancock, denied all complaint items and argued its actions were consistent with the governing CC&Rs.

• Basis of Approval: The HOA contended that its approval was based solely on the criteria outlined in CC&R § 7.2. The board, acting as the Architectural Control Committee, reviewed Mr. Johnson’s proposal for its aesthetic qualities and consistency with other properties in the development.

• Aesthetic Review: Ms. Hancock testified that the board inspected other wall extensions and gates and found Mr. Johnson’s proposal to be “aesthetically pleasing and consistent with the other properties.”

• Neighbor Consent Issue: The HOA acknowledged its awareness of Mr. Shields’ objection to the wall after it was built. However, Ms. Hancock testified that the board’s understanding of whether Mr. Shields had approved the wall before construction was unclear. She stated that “at least four witnesses had stated that they heard Petitioner either actually approve of or fail to state an objection to the block wall extension while, in Petitioner’s presence, Mr. Johnson discussed having the block wall extension built.”

• Separation of Duties: The HOA’s position was that its duty under § 7.2 was distinct from the homeowner’s duty under § 6.2. The HOA was not responsible for obtaining or verifying neighbor approval.

IV. Chronology of Key Events

1. October 13, 2016 (approx.): Mr. Johnson has the block wall extension built without first obtaining approval from the HOA’s board or committee.

2. October 16, 2016 (approx.): Mr. Shields expresses his disapproval of the newly built wall to Mr. and Mrs. Johnson.

3. November 2, 2016 (approx.): Mr. Johnson retroactively submits his proposal for the wall extension and a plan to move his gate forward to the Architectural Control Committee for approval.

4. November 2016: The HOA’s newly elected board meets as the Committee and verbally approves Mr. Johnson’s wall but advises him that “he will need to seek neighboring property owner’s approval.”

5. January 2017: The board formally approves Mr. Johnson’s proposal for the wall extension and gate move.

6. May 3, 2017 (approx.): Mr. Shields files a single-issue petition with the Arizona Department of Real Estate.

7. September 27, 2017: An initial hearing is held, and Administrative Law Judge Diane Mihalsky dismisses the petition.

8. December 5, 2017: The Real Estate Commissioner grants Mr. Shields’ request for a rehearing based on his claims of legal errors and judicial misconduct.

9. February 5, 2018: A rehearing is held before Administrative Law Judge Tammy L. Eigenheer.

V. Analysis of Covenants, Conditions, and Restrictions (CC&Rs)

The judge’s decision hinged on the distinct and separate functions of two key CC&R sections.

This section governs alterations to shared fences and walls.

Such Party Walls and Fences shall not be altered, or changed in design, color, material or construction from the original installation made by the Developer without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.

• Interpretation: The ALJ interpreted this section as creating two separate approval requirements for the homeowner making the alteration: one from the adjoining owner and one from the Committee. It does not obligate the Committee to enforce the adjoining owner’s approval.

This section defines the scope and limits of the Architectural Control Committee’s power.

No . . . fences . . . shall be commenced [or] erected . . . until the plans and specifications showing the same shall have been submitted to and approved by the Committee. Approval shall not be unreasonably withheld. However, the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…

• Interpretation: The ALJ found that this section limits the Committee’s review to specific criteria, including aesthetics, harmony with surroundings, and effect on neighboring property. It explicitly states that approval “shall not be unreasonably withheld” and does not require the Committee to verify compliance with other CC&Rs or city ordinances.

VI. Judge’s Conclusions of Law and Rationale for Dismissal

The ALJ’s decision to dismiss the petition was based on a clear legal interpretation of the CC&Rs and the petitioner’s failure to meet the burden of proof.

• Distinct and Separate Obligations: The core of the ruling is that the CC&Rs create parallel but separate responsibilities.

1. Homeowner’s Responsibility: The duty to obtain an adjoining neighbor’s approval for a shared wall alteration under § 6.2(A) rests solely with the homeowner performing the work (Mr. Johnson).

2. HOA’s Responsibility: The HOA’s duty under § 7.2 is limited to reviewing the project on its aesthetic merits and consistency within the community.

• Key Legal Finding: The decision explicitly states the separation of these duties:

• Scope of HOA Review: The ALJ affirmed that the HOA’s scope of review was properly limited.

• Failure to Meet Burden of Proof: Because the HOA acted within the authority and limitations defined by CC&R § 7.2, the petitioner failed to prove by a preponderance of the evidence that the HOA had violated its governing documents.

• Other Responsibilities: The decision also noted that the responsibility for ensuring compliance with City of Queen Creek ordinances (related to the gate move) ultimately rested with Mr. Johnson, not the HOA.

VII. Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge ordered that the petition be dismissed.

• No action is required of the Respondent, Will Rogers Equestrian Ranch HOA.

• The decision, issued as a result of a rehearing, is binding on the parties.

• Any appeal must be filed with the superior court within thirty-five days from the date the order was served.


John Shields vs. Will Rogers Equestrian Ranch

Posted on by

Case Summary

Case ID 17F-H1717034-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-02-26
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John L. Shields Counsel —
Respondent Will Rogers Equestrian Ranch Counsel Maria R. Kupillas

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).

Key Issues & Findings

Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.

Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.

Orders: The petition is dismissed and no action is required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • CC&R § 6.2(A)
  • CC&R § 7.2

Analytics Highlights

Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

17F-H1717034-REL Decision – 619560.pdf

Uploaded 2025-10-08T06:51:19 (90.8 KB)





Briefing Doc – 17F-H1717034-REL


Briefing Document: Analysis of Administrative Law Judge Decision in Shields v. Will Rogers Equestrian Ranch

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in Case No. 17F-H1717034-REL-RHG, dated February 26, 2018. The central issue was a petition filed by homeowner John L. Shields against the Will Rogers Equestrian Ranch Homeowners’ Association (HOA), alleging the HOA improperly approved a wall extension built by his neighbor, Joe Johnson, without Mr. Shields’ required consent.

The petition was ultimately dismissed. The Administrative Law Judge (ALJ) concluded that the petitioner, Mr. Shields, failed to establish by a preponderance of the evidence that the HOA had violated its Covenants, Conditions, and Restrictions (CC&Rs). The decision rests on a critical distinction between the responsibilities of a homeowner and the responsibilities of the HOA under separate articles of the CC&Rs. The ALJ determined that the obligation to secure an adjoining neighbor’s approval for a wall alteration (under CC&R § 6.2) falls exclusively on the homeowner undertaking the project. In contrast, the HOA’s duty (under CC&R § 7.2) is limited to an aesthetic review of the proposed alteration, which it conducted appropriately. The HOA had no legal obligation to enforce or verify neighbor-to-neighbor approval.

I. Case Overview

Case Name

John L. Shields (Petitioner) vs. Will Rogers Equestrian Ranch (Respondent)

Case Number

17F-H1717034-REL-RHG

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Date of Decision

February 26, 2018

Core Dispute

The petitioner alleged the HOA violated CC&R § 6.2(A) by approving a neighbor’s approximately 5’ x 6’ block wall extension without the petitioner’s consent.

Final Outcome

The petition was dismissed, with no action required of the respondent HOA.

II. Petitioner’s Claim and Arguments

John L. Shields, a homeowner at 20431 E. Bronco Drive within the Will Rogers Equestrian Ranch development, filed a petition against the HOA concerning a wall extension built by his next-door neighbor, Joe Johnson.

• Core Allegation: After vacillating on the specifics of his complaint during the hearing, Mr. Shields firmly asserted that his single issue was that the HOA improperly approved Mr. Johnson’s proposal to build a block wall extension and move his gate forward.

• Basis of Claim: The petitioner argued that under CC&R § 6.2, the HOA should have withheld its approval because Mr. Johnson had not demonstrated that he had first obtained Mr. Shields’ approval for the wall extension between their properties.

• Evidence and Testimony: Mr. Shields denied ever having approved the wall. He submitted a photograph he had taken from his front porch and testified that the block wall extension “was an eyesore.”

III. Respondent’s Position and Evidence

The Will Rogers Equestrian Ranch HOA, represented by board president Kristi Hancock, denied all complaint items and argued its actions were consistent with the governing CC&Rs.

• Basis of Approval: The HOA contended that its approval was based solely on the criteria outlined in CC&R § 7.2. The board, acting as the Architectural Control Committee, reviewed Mr. Johnson’s proposal for its aesthetic qualities and consistency with other properties in the development.

• Aesthetic Review: Ms. Hancock testified that the board inspected other wall extensions and gates and found Mr. Johnson’s proposal to be “aesthetically pleasing and consistent with the other properties.”

• Neighbor Consent Issue: The HOA acknowledged its awareness of Mr. Shields’ objection to the wall after it was built. However, Ms. Hancock testified that the board’s understanding of whether Mr. Shields had approved the wall before construction was unclear. She stated that “at least four witnesses had stated that they heard Petitioner either actually approve of or fail to state an objection to the block wall extension while, in Petitioner’s presence, Mr. Johnson discussed having the block wall extension built.”

• Separation of Duties: The HOA’s position was that its duty under § 7.2 was distinct from the homeowner’s duty under § 6.2. The HOA was not responsible for obtaining or verifying neighbor approval.

IV. Chronology of Key Events

1. October 13, 2016 (approx.): Mr. Johnson has the block wall extension built without first obtaining approval from the HOA’s board or committee.

2. October 16, 2016 (approx.): Mr. Shields expresses his disapproval of the newly built wall to Mr. and Mrs. Johnson.

3. November 2, 2016 (approx.): Mr. Johnson retroactively submits his proposal for the wall extension and a plan to move his gate forward to the Architectural Control Committee for approval.

4. November 2016: The HOA’s newly elected board meets as the Committee and verbally approves Mr. Johnson’s wall but advises him that “he will need to seek neighboring property owner’s approval.”

5. January 2017: The board formally approves Mr. Johnson’s proposal for the wall extension and gate move.

6. May 3, 2017 (approx.): Mr. Shields files a single-issue petition with the Arizona Department of Real Estate.

7. September 27, 2017: An initial hearing is held, and Administrative Law Judge Diane Mihalsky dismisses the petition.

8. December 5, 2017: The Real Estate Commissioner grants Mr. Shields’ request for a rehearing based on his claims of legal errors and judicial misconduct.

9. February 5, 2018: A rehearing is held before Administrative Law Judge Tammy L. Eigenheer.

V. Analysis of Covenants, Conditions, and Restrictions (CC&Rs)

The judge’s decision hinged on the distinct and separate functions of two key CC&R sections.

This section governs alterations to shared fences and walls.

Such Party Walls and Fences shall not be altered, or changed in design, color, material or construction from the original installation made by the Developer without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.

• Interpretation: The ALJ interpreted this section as creating two separate approval requirements for the homeowner making the alteration: one from the adjoining owner and one from the Committee. It does not obligate the Committee to enforce the adjoining owner’s approval.

This section defines the scope and limits of the Architectural Control Committee’s power.

No . . . fences . . . shall be commenced [or] erected . . . until the plans and specifications showing the same shall have been submitted to and approved by the Committee. Approval shall not be unreasonably withheld. However, the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…

• Interpretation: The ALJ found that this section limits the Committee’s review to specific criteria, including aesthetics, harmony with surroundings, and effect on neighboring property. It explicitly states that approval “shall not be unreasonably withheld” and does not require the Committee to verify compliance with other CC&Rs or city ordinances.

VI. Judge’s Conclusions of Law and Rationale for Dismissal

The ALJ’s decision to dismiss the petition was based on a clear legal interpretation of the CC&Rs and the petitioner’s failure to meet the burden of proof.

• Distinct and Separate Obligations: The core of the ruling is that the CC&Rs create parallel but separate responsibilities.

1. Homeowner’s Responsibility: The duty to obtain an adjoining neighbor’s approval for a shared wall alteration under § 6.2(A) rests solely with the homeowner performing the work (Mr. Johnson).

2. HOA’s Responsibility: The HOA’s duty under § 7.2 is limited to reviewing the project on its aesthetic merits and consistency within the community.

• Key Legal Finding: The decision explicitly states the separation of these duties:

• Scope of HOA Review: The ALJ affirmed that the HOA’s scope of review was properly limited.

• Failure to Meet Burden of Proof: Because the HOA acted within the authority and limitations defined by CC&R § 7.2, the petitioner failed to prove by a preponderance of the evidence that the HOA had violated its governing documents.

• Other Responsibilities: The decision also noted that the responsibility for ensuring compliance with City of Queen Creek ordinances (related to the gate move) ultimately rested with Mr. Johnson, not the HOA.

VII. Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge ordered that the petition be dismissed.

• No action is required of the Respondent, Will Rogers Equestrian Ranch HOA.

• The decision, issued as a result of a rehearing, is binding on the parties.

• Any appeal must be filed with the superior court within thirty-five days from the date the order was served.