Tag Archives: A.R.S. § 32-2199.02(B)

Brent J Mathews v. American Ranch Community Association

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Case Summary

Case ID 18F-H1818050-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-10-11
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge dismissed the Petition because the Petitioner failed to prove the Respondent Board violated the Bylaws. The Board was found to have the necessary authority under Bylaws Section 3.11 to enter into the Well Agreement 2 as a variance, and this action did not constitute an improper amendment of the CC&Rs.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brent J. Mathews Counsel —
Respondent American Ranch Community Association Counsel Lynn Krupnik and Timothy Krupnik

Alleged Violations

American Ranch Bylaws, Article 3.11

Outcome Summary

The Administrative Law Judge dismissed the Petition because the Petitioner failed to prove the Respondent Board violated the Bylaws. The Board was found to have the necessary authority under Bylaws Section 3.11 to enter into the Well Agreement 2 as a variance, and this action did not constitute an improper amendment of the CC&Rs.

Why this result: The Board was authorized to grant a variance to the CC&Rs regarding the well on Lot 2, a power delegated to the Association, meaning the Board did not exceed its authority under the Bylaws.

Key Issues & Findings

Alleged violation of the American Ranch Bylaws, Article 3.11, when the Board entered into the 'Well Agreement' (Well Agreement 2).

Petitioner asserted that the Board violated the Bylaws by entering into Well Agreement 2, claiming the Board lacked the authority to grant exceptions or variances to the CC&Rs regarding the use of a private water well on Lot 2. The Board agreed the well existed in violation of CC&Rs Section 3.26, but argued Well Agreement 2 constituted a variance, not an amendment.

Orders: The Petition was dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA authority, Bylaws 3.11, CC&Rs, Variance, Amendment, Well Agreement, Burden of Proof, Dismissal
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

18F-H1818050-REL Decision – 664186.pdf

Uploaded 2026-04-24T11:13:46 (112.4 KB)

18F-H1818050-REL Decision – 664186.pdf

Uploaded 2026-01-23T17:24:56 (112.4 KB)

Briefing Document: Mathews v. American Ranch Community Association

Executive Summary

This briefing document outlines the findings and decision in case number 18F-H1818050-REL, a dispute between Petitioner Brent J. Mathews and the American Ranch Community Association (HOA). The Administrative Law Judge dismissed the petition, concluding that Mr. Mathews failed to prove his allegations by a preponderance of the evidence.

The central issue was whether the HOA’s Board of Directors violated Article 3.11 of its Bylaws by entering into a “Well Agreement” with the owners of Lot 2 on August 9, 2016. The Petitioner argued that this agreement constituted an unauthorized amendment to the community’s Covenants, Conditions, and Restrictions (CC&Rs) because the Board does not have the power to grant exceptions.

The judge found this argument “faulty,” determining that the agreement was not an amendment but a variance. The CC&Rs explicitly grant the authority to issue variances to the Architectural Review Committee. Per the Bylaws, the Board is empowered to exercise any authority delegated to the Association that is not specifically reserved for the general membership. Therefore, the judge concluded that the Board acted within its authority when it executed the agreement. The decision was based on the Board’s need to resolve a problematic prior agreement under time-sensitive circumstances related to a property sale.

1. Case Overview

Case Number

18F-H1818050-REL

Petitioner

Brent J. Mathews

Respondent

American Ranch Community Association

Hearing Date

September 21, 2018

Decision Date

October 11, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

The dispute originated from a petition filed by Brent J. Mathews on May 16, 2018, with the Arizona Department of Real Estate. The core of the complaint was an alleged Open Meeting Violation concerning an “Action Outside of Meeting” that resulted in a “Well Agreement” between the Association and homeowners Mark and Diane Kaplan.

2. Petitioner’s Core Allegation

After being directed to clarify his petition to a single issue, Mr. Mathews submitted the following statement on August 23, 2018:

“When the Board entered into the ‘Well Agreement’ they may have assumed they had the power to grant exceptions to the CC&R’s. The American Ranch Community Association Bylaws do not empower the Board to grant exceptions to the CC&R’s. Therefore the single complaint is an alleged violation of the American Ranch Bylaws, Article 3.11.”

The Petitioner’s legal argument was that the Board’s action in creating the “Well Agreement 2” was effectively an amendment of the CC&Rs. According to Section 9.3.1 of the CC&Rs, amendments require the written approval or affirmative vote of 75 percent of the total owners. Since this did not occur, the Petitioner concluded the Board lacked the authority to enter into the agreement.

3. Factual Background and Chronology of Events

The case revolves around a water well on Lot 2 of the American Ranch community, which was installed in violation of the governing documents.

A water well is installed on Lot 2. This installation violates Section 3.26 of the CC&Rs, which prohibits wells on all lots except Equestrian Lots and, even then, only with prior approval from the Architectural Review Committee (ARC) for specific purposes.

June 2011

The owners of Lot 2 and the HOA Board enter into the first “Well and Easement Agreement” (Well Agreement 1). This agreement permitted the continued use of the well for irrigation but required the owners to install a water meter and pay the HOA for water usage at the same rate as the local water district.

November 23, 2013

Lot 2 is sold to Steven and Frances Galliano.

July 30, 2016

Mark and Diane Kaplan, who are in escrow to purchase Lot 2, email the Community Manager, Tiffany Taylor. They express concern over Well Agreement 1 and state they cannot proceed with the purchase without clarity on the HOA’s position. They also note that the Gallianos told them they had never been charged for water from the well.

August 2016

Facing a time-sensitive situation due to the pending property sale, the HOA Board decides to enter into a new agreement to invalidate Well Agreement 1. The Board’s decision was based in part on the belief that it lacked the authority to enter into the original agreement, specifically because it had no power to bill residents for water usage—a function of the water district.

August 9, 2016

The HOA Board and the Kaplans execute a new “Well Agreement” (Well Agreement 2). This agreement permits the continued use of the well for irrigation purposes but explicitly states the owners will not be billed for the water used.

4. Administrative Law Judge’s Findings and Legal Reasoning

The Judge’s decision rested on a critical distinction between a CC&R amendment and a variance, and a detailed analysis of the powers granted to the Board by the governing documents.

A. Burden of Proof

The Petitioner, Brent J. Mathews, bore the burden of proof to establish that the HOA committed the alleged violation by a “preponderance of the evidence.” This standard requires proof that a contention is more probably true than not.

B. Variance vs. Amendment

The central point of the Judge’s legal conclusion was the rejection of the Petitioner’s argument.

• Petitioner’s Argument: Well Agreement 2 was an amendment to the CC&Rs.

• Judge’s Finding: The argument is “faulty.” The decision states, “A variance granted to an individual owner from a restriction under the CC&Rs does not constitute an amendment of the CC&Rs.”

The Judge found that the CC&Rs themselves, in Section 3.31, provide a specific mechanism for granting variances. The ARC is authorized to grant variances in “extenuating circumstances” if a restriction creates an “unreasonable hardship or burden” and the variance does not have a “substantial adverse effect” on the community.

C. The Board’s Delegated Authority

The Judge established a clear chain of authority that empowered the Board to act as it did:

1. CC&R Section 3.31: Delegates the power to grant variances to the Architectural Review Committee.

2. Bylaw Section 3.11.8: States the Board shall have the power to “Exercise for the Association all powers, duties and authority vested in or delegated to the Association and not reserved to the membership by other provisions of the Project Documents.”

3. Conclusion: Because the power to grant variances was delegated to the ARC (and thus to the Association) and not reserved for the membership, the Board had the authority to grant the variance embodied in Well Agreement 2.

5. Final Order

Based on the foregoing analysis, the Administrative Law Judge issued the following order:

• Decision: The Petition filed by Brent J. Mathews is dismissed.

• Reasoning: “Petitioner failed to establish by a preponderance of the evidence that the Board of Directors lacked the authority to enter into Well Agreement 2. Thus, Petitioner failed to sustain his burden to establish a violation of Section 3.11 of the Bylaws.”

The order was finalized and transmitted to the parties on October 11, 2018.

Study Guide: Mathews v. American Ranch Community Association (Case No. 18F-H1818050-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Brent J. Mathews and Respondent American Ranch Community Association. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling presented in the source document.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences based on the information provided in the case document.

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

2. What was the initial, overarching subject of Brent J. Mathews’s complaint filed on May 16, 2018?

3. After being asked to clarify, what single issue did the Petitioner choose to proceed with for the hearing?

4. According to the CC&Rs, what are the specific rules regarding the use of water wells on lots within American Ranch?

5. What were the key terms of “Well Agreement 1,” established in June 2011 with the original owners of Lot 2?

6. Why did the American Ranch Board of Directors believe they lacked the authority to enforce “Well Agreement 1”?

7. What were the terms of “Well Agreement 2,” which was executed on August 9, 2016, with the new owners of Lot 2, the Kaplans?

8. What was Petitioner Mathews’s primary legal argument against the Board’s authority to enter into “Well Agreement 2”?

9. How did the Administrative Law Judge distinguish between a “variance” and an “amendment” to the CC&Rs in the final decision?

10. What was the final order issued by the Administrative Law Judge on October 11, 2018?

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Answer Key

1. The primary parties were Petitioner Brent J. Mathews, who filed the complaint, and Respondent American Ranch Community Association (HOA), which was the subject of the complaint. Mathews represented himself, while the Association was represented by Lynn Krupnik and Timothy Krupnik.

2. The initial complaint’s subject was an “Open Meeting Violation regarding an ‘Action Outside of Meeting’” that took place on August 6, 2016. This action concerned the Association entering into a “Well Agreement” with Mark and Diane Kaplan.

3. The Petitioner clarified his single issue was an alleged violation of the American Ranch Bylaws, Article 3.11. He argued that the Board entered into the “Well Agreement” assuming they had the power to grant exceptions to the CC&Rs, a power he claimed the Bylaws did not grant them.

4. Section 3.26 of the CC&Rs prohibits water wells on all lots except Equestrian Lots. On Equestrian Lots, wells are permitted only with prior written approval from the Architectural Review Committee and must be used solely to irrigate pasture land and provide drinking water for horses.

5. “Well Agreement 1” acknowledged that the owners of Lot 2 were using their well for irrigation in violation of the CC&Rs. The agreement allowed them to continue this use, provided they installed a water meter and paid the Association the same per-gallon charge as other owners paid to the water district.

6. The Board of Directors believed they did not have the authority to enter into “Well Agreement 1” because they had no ability or authority to bill the lot owners for water used from a private well. They reasoned that billing for water was the responsibility of the water district, not the HOA.

7. “Well Agreement 2” stated that the private water well on Lot 2 would continue to be used for irrigation purposes. Crucially, it specified that the owners (the Kaplans) would not be billed for the water used from this well.

8. Petitioner Mathews argued that “Well Agreement 2” constituted an amendment of the CC&Rs. He contended that under Section 9.3.1 of the CC&Rs, an amendment requires the written approval or affirmative vote of 75 percent of the total owners, and therefore the Board acted outside its authority.

9. The Judge ruled that “Well Agreement 2” was a variance granted to an individual owner, not an amendment to the CC&Rs. The CC&Rs specifically provide a method for granting variances via the Architectural Review Committee, and this power is delegated to the Association and thus exercisable by the Board.

10. The final order, issued on October 11, 2018, was that the Petition be dismissed. The Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Board of Directors lacked the authority to enter into “Well Agreement 2.”

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Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-style response. Use the case document to construct a thorough and well-supported argument for each prompt. Answers are not provided.

1. Analyze the evolution of the dispute, from the initial installation of the well on Lot 2 to the final Administrative Law Judge Decision. Discuss the key events and agreements (Well Agreement 1 and Well Agreement 2) and explain how each contributed to the legal conflict.

2. Explain the legal reasoning used by the Administrative Law Judge to dismiss the Petitioner’s claim. Detail the specific sections of the Bylaws and CC&Rs cited (3.11, 3.26, 3.31, 9.3.1) and explain the distinction the Judge made between a “variance” and an “amendment.”

3. Discuss the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the required standard (“preponderance of the evidence”), and why did the Petitioner ultimately fail to meet this standard?

4. Evaluate the actions of the American Ranch Community Association Board of Directors regarding Lot 2’s well. Discuss their reasoning for invalidating Well Agreement 1 and creating Well Agreement 2, and analyze whether their actions were consistent with the powers granted to them by the community’s governing documents.

5. Based on the procedural history outlined in the “Findings of Fact,” describe the process of an HOA dispute in this jurisdiction, from the initial filing of a petition to the final order from the Office of Administrative Hearings.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (Tammy L. Eigenheer) who presides over administrative hearings and issues a decision on the matter.

A.R.S. (Arizona Revised Statutes)

The statutory laws of the state of Arizona, sections of which regulate planned communities and the administrative hearing process.

Architectural Review Committee

A body within the Association delegated the authority by the CC&Rs (Section 3.31) to grant variances from certain restrictions in extenuating circumstances.

Board of Directors

The governing body of the American Ranch Community Association, which has the powers and duties necessary for administering the Association’s affairs.

Burden of Proof

The obligation of a party in a legal case to prove their claims. In this case, the Petitioner had the burden to establish the alleged violations.

Bylaws

The rules governing the internal administration of the Association. Petitioner alleged a violation of Bylaw 3.11, which outlines the powers and duties of the Board.

Covenants, Conditions, and Restrictions. These are the governing documents that set rules for properties within the community, such as the prohibition of certain water wells (Section 3.26).

Department

Refers to the Arizona Department of Real Estate, the agency with which the initial Homeowners Association Dispute Process Petition was filed.

Office of Administrative Hearings

An independent state agency to which the Department refers HOA dispute cases for a formal hearing.

Petition

The formal document filed by Brent J. Mathews to initiate the HOA dispute process with the Arizona Department of Real Estate.

Petitioner

The party who brings the legal action or complaint. In this case, Brent J. Mathews.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom the petition is filed. In this case, the American Ranch Community Association.

Variance

An officially granted exception from a restriction in the CC&Rs for an individual owner. The Judge determined Well Agreement 2 was a variance, not an amendment.

Well Agreement 1

A June 2011 agreement that allowed the owners of Lot 2 to use a non-compliant well for irrigation, provided they paid the Association for the water.

Well Agreement 2

An August 2016 agreement that invalidated Well Agreement 1 and allowed the new owners of Lot 2 (the Kaplans) to continue using the well for irrigation without being billed for the water.

Your HOA Board Might Be More Powerful Than You Think: 3 Lessons from a Legal Showdown

1.0 Introduction: The Predictable Fight with an Unpredictable Outcome

It’s a scenario familiar to many homeowners: you suspect your Homeowners Association (HOA) board is playing favorites, bending the rules for one resident while holding everyone else to the letter of the law. This feeling of frustration often leads to heated disputes, but what happens when a homeowner decides to take that fight to court? You might expect a simple verdict based on the community’s clear, written rules.

That’s exactly what homeowner Brent J. Mathews thought. He discovered his HOA board had made a special agreement with a neighbor, allowing a water well that clearly violated the community’s governing documents. He filed a formal complaint, arguing the board had illegally overstepped its authority.

The case that followed, however, didn’t turn on one obvious rule. Instead, the judge’s decision hinged on how different governing documents—the CC&Rs and the Bylaws—interact. The outcome reveals some surprising and counter-intuitive truths about where power really lies within an HOA, offering critical lessons for every homeowner.

2.0 Takeaway 1: A Special Exception Isn’t the Same as Changing the Rules for Everyone

Mr. Mathews’ central argument was straightforward and, on its face, perfectly logical. He contended that the board’s “Well Agreement 2” with his neighbor was effectively an amendment to the community’s Covenants, Conditions, and Restrictions (CC&Rs).

According to the community’s CC&Rs (Section 9.3.1), amending the rules is a serious undertaking that requires the written approval of 75 percent of all homeowners. The board clearly did not have this approval, so it seemed to be a clear-cut case of an illegal action. Many homeowners would have made the same reasonable assumption: the board can’t just change the rules on its own.

However, the judge found a critical distinction. The board’s action was not an “amendment”—a permanent change to the rules for the entire community. Instead, it was legally considered a “variance”—a one-time exception granted to a single homeowner. Because the CC&Rs contained a separate, specific process for granting variances (Section 3.31), the board was not illegally rewriting the rulebook; it was simply using a different, pre-existing tool in the governing documents.

3.0 Takeaway 2: The Board Can Wield Powers Given to Its Own Committees

This distinction raised another logical objection. The CC&Rs (Section 3.31) explicitly state that the power to grant variances belongs to the “Architectural Review Committee” (ARC), not the Board of Directors. It appeared Mr. Mathews had found his checkmate: even if the action was a variance, the wrong body had granted it.

This is where the case took its most surprising turn. The judge looked beyond the CC&Rs and consulted a different governing document: the Bylaws. This document contained a foundational clause about the board’s authority that proved decisive.

According to Bylaw 3.11.8, the Board of Directors is empowered to exercise any authority of the Association that is not specifically and exclusively reserved for the members themselves. Since the power to grant variances was delegated to a committee (the ARC) and not reserved for a vote by the general membership, the Board had the authority to step in and exercise that power itself. The judge’s decision made this clear.

“As the power to grant variances was delegated to the Architectural Review Committee and was not reserved to the membership, the Board had the authority to grant such a variance.”

This finding reveals a crucial principle of HOA governance: powers delegated to a committee are not the same as powers reserved for the entire membership. Unless a power is explicitly reserved for a member vote, the Bylaws can grant the Board ultimate authority over it.

4.0 Takeaway 3: A Messy History Can Justify an Unusual Solution

While the legal arguments are complex, the context behind the board’s decision is equally important. The board wasn’t making a special deal out of the blue; it was trying to solve a messy problem it had inherited.

The well on Lot 2 was originally installed around 2007 in violation of Section 3.26 of the CC&Rs. The board’s first attempt to fix this, “Well Agreement 1” in or about June 2011, allowed the well’s use but required the owner to pay the association for the water consumed. This arrangement, however, was deeply flawed.

When new buyers (the Kaplans) were in escrow to purchase the property in 2016, the situation came to a head. The Kaplans discovered the unusual agreement and informed the board they would be “unable to proceed with the purchase” unless its status was clarified. With the real estate deal on the line, the board recognized that “time was of the essence.”

The board’s decision to execute “Well Agreement 2” was driven by two realities. First, they believed the original agreement was legally invalid, as the board had no authority to bill a resident for water. Second, the agreement was a failure in practice; the Kaplans had been told by the prior owners that “they had never been charged for the water used from the well.” Facing an unenforceable and un-enforced agreement that was now threatening a home sale, the board acted pragmatically to resolve the decade-old violation once and for all.

5.0 Conclusion: Know the Rules—And Who Has the Power to Bend Them

The core lesson from this case is that HOA governance is a complex web of interlocking documents. The rules you read in the CC&Rs might not tell the whole story. Power and authority can be defined, and even transferred, by provisions buried in the Bylaws or other governing texts. What may seem like an obvious violation can be justified by a clause a homeowner might easily overlook.

This case is a powerful reminder for every homeowner. It’s not enough to know the rules of your community. You also need to understand the system of governance that enforces, interprets, and sometimes, grants exceptions to them. It prompts a critical question: Do you know not just the rules in your community, but who really has the authority to grant exceptions?

Case Participants

Petitioner Side

  • Brent J. Mathews (petitioner)
    Appeared on his own behalf

Respondent Side

  • Lynn Krupnik (attorney)
    Krupnik & Speas, PLLC
    Represented Respondent
  • Timothy Krupnik (attorney)
    Krupnik & Speas, PLLC
    Represented Respondent
  • Tiffany Taylor (community manager)
    American Ranch Community Association
    Testified for Respondent
  • Brad Baker (board member)
    American Ranch Community Association
    Respondent Vice President; testified at hearing

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
  • Felicia Del Sol (administrative staff)
    Signed transmission page
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Decision recipient
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Decision recipient
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Decision recipient
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Decision recipient
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Decision recipient

Other Participants

  • Mark Kaplan (owner)
    Lot 2
    Executed Well Agreement 2
  • Diane Kaplan (owner)
    Lot 2
    Executed Well Agreement 2
  • Steven Galliano (former owner)
    Lot 2
  • Frances Galliano (former owner)
    Lot 2

Travis Prall v. Villas at Tierra Buena HOA

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Case Summary

Case ID 18F-H1818053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-31
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Travis Prall Counsel —
Respondent Villas at Tierra Buena Homeowners Association Counsel Lydia Pierce Linsmeier

Alleged Violations

Section 7.1.4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.

Key Issues & Findings

Neglecting yard maintenance in visible public yards

Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

18F-H1818053-REL Decision – 686236.pdf

Uploaded 2026-04-26T09:46:58 (116.2 KB)

18F-H1818053-REL Decision – 661820.pdf

Uploaded 2026-04-26T09:47:00 (107.3 KB)

18F-H1818053-REL Decision – 686236.pdf

Uploaded 2026-04-24T11:14:18 (116.2 KB)

18F-H1818053-REL Decision – 661820.pdf

Uploaded 2026-04-24T11:14:22 (107.3 KB)

Briefing: Prall v. Villas at Tierra Buena HOA Dispute

Executive Summary

This briefing synthesizes the findings and legal rationale from a homeowners’ association dispute between Petitioner Travis Prall and Respondent Villas at Tierra Buena HOA. The case centered on whether the HOA was responsible for maintaining a tree in the Petitioner’s backyard. The Petitioner alleged the HOA violated Section 7.1.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs) by neglecting maintenance in what he defined as a “Public Yard.”

The dispute was adjudicated by the Arizona Office of Administrative Hearings, resulting in two decisions, an initial ruling and a subsequent ruling on rehearing, both of which dismissed the Petitioner’s case. The critical takeaway is that the case was decided not on the ambiguous definition of “Public” versus “Private” yards, but on a crucial qualifying clause in the CC&Rs. Section 7.1.4 obligates the HOA to maintain landscaping only “as originally installed by Declarant.”

The Petitioner failed to provide sufficient evidence that the tree in question was part of the original developer’s landscaping. Conversely, the HOA presented credible testimony from an early homeowner and board member stating that all backyards in the community were sold as “just dirt,” with no developer-installed landscaping or irrigation. The Administrative Law Judge ruled that the Petitioner’s arguments were based on “suppositions and inferences” and did not meet the “preponderance of the evidence” standard required to prove his claim.

Case Overview

This dispute was initiated by a petition filed with the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings. The core issue was the interpretation of HOA maintenance responsibilities as defined in the community’s governing documents.

Case Detail

Information

Case Number

18F-H1818053-REL

Petitioner

Travis Prall

Respondent

Villas at Tierra Buena HOA

Adjudicator

Administrative Law Judge Tammy L. Eigenheer

Initial Hearing

September 4, 2018

Initial Decision

September 24, 2018 (Petition Dismissed)

Rehearing

January 11, 2019

Final Decision

January 31, 2019 (Petition Dismissed)

Timeline of Key Events

• 2010: Petitioner Travis Prall purchases his home, an “interior” unit, and believes the HOA is responsible for both front and backyard maintenance.

• July 26, 2014: A storm knocks over a large tree in the Petitioner’s backyard. He pays for its removal while asserting it was the HOA’s responsibility.

• Post-2014: The tree regrows from its remaining trunk.

• 2018: The HOA observes that the regrown tree’s roots are causing a “pony wall” to buckle and hires Sun King Fencing & Gates to perform repairs. The repair company recommends removing the tree to prevent recurrence.

• May 3, 2018: The HOA issues a “Courtesy Letter” to the Petitioner, requesting he “trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: In response, the Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Central Allegation and Dispute

The Petitioner alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of its CC&Rs by “neglecting yard maintenance in visible public yards.” His central claim was that his backyard, though enclosed, qualifies as a “Public Yard” under the CC&Rs and that the HOA was therefore responsible for the maintenance and removal of the problematic tree. The HOA’s demand that he handle the tree himself constituted, in his view, a violation of their duties.

Analysis of Arguments and Evidence

The case presented conflicting interpretations of the CC&Rs and opposing accounts of historical maintenance practices.

Petitioner’s Position (Travis Prall)

The Petitioner’s case was built on his interpretation of the CC&Rs and inferences drawn from circumstantial evidence.

• CC&R Interpretation: Argued that his backyard is a “Public Yard” because, while enclosed by a four-foot wall (two-foot block plus two-foot aluminum fence), it is “generally visible from Neighboring Property” via a community walkway.

• Claim of Prior Maintenance: Testified that from 2010 to 2013, the HOA did provide landscaping maintenance for his backyard.

• Inferences about Original Landscaping:

◦ Posited that the large size of the tree in 2010 indicated it must have been planted by the original developer around 2000.

◦ Argued that the similar design of irrigation systems across the community suggested they were all installed during original construction, including those in backyards.

◦ Noted that the sprinkler system in his backyard wrapped around the tree, further suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

The Respondent’s defense relied on its own interpretation of the CC&Rs, consistent historical practice, and direct testimony regarding the community’s development.

• CC&R Interpretation: Argued that an “enclosed” yard is, by definition, a “Private Yard,” making the homeowner responsible for its maintenance.

• Denial of Prior Maintenance: Stated unequivocally that it had never provided landscaping services for any resident’s backyard. Its responsibility is limited to front yards and common areas.

• Practical and Liability Concerns: Argued that it has no access to control backyard irrigation systems and that its workers entering enclosed yards would create liability issues, such as pets escaping.

• Crucial Rehearing Testimony: Presented testimony from Maureen Karpinski, the HOA Board President.

◦ Ms. Karpinski, a real estate agent, purchased her home from the developer in 2002 and was involved with the community during its construction phase.

◦ She testified with certainty that her backyard was “just dirt” with no landscaping or irrigation when she purchased it.

◦ She stated that, to the best of her knowledge, “none of the homes in Respondent’s community were sold with any landscaping or irrigation in the back yards and were just dirt.”

Interpretation of Governing CC&R Sections

The dispute revolved around the specific language in the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Provision

Significance in the Case

The HOA must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…“

This became the dispositive clause. The Petitioner’s entire claim depended on proving the tree was “originally installed by Declarant.”

“Private Yard” means that portion of a Yard which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property. “Public Yard” means that portion of a Yard which is generally visible from Neighboring Property…

This created a central point of interpretive conflict. The Petitioner argued the clause meant “enclosed and not visible,” while the HOA argued it meant “enclosed or shielded.” The Judge ultimately did not rule on this ambiguity.

“Visible from Neighboring Property” means… visible to a person six feet tall standing on any part of such neighboring property…

This definition supported the Petitioner’s claim that his backyard was, in fact, “visible” from the common area walkway.

Administrative Law Judge’s Rulings and Rationale

The Administrative Law Judge (ALJ) dismissed the Petitioner’s case in both the initial hearing and the rehearing, focusing on the burden of proof related to a single, critical phrase in the CC&Rs.

Initial Decision (September 24, 2018)

• Avoidance of Ambiguity: The ALJ acknowledged the potential merit of the Petitioner’s interpretation of “Public Yard,” stating “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes.” However, the ALJ concluded the tribunal was “not required to reach that issue in this matter.”

• Focus on “Originally Installed by Declarant”: The decision hinged entirely on Section 7.1.4. The ALJ found that the “Petitioner failed to present any evidence that the tree at issue was originally installed by the Declarant.”

• Lack of Proof: The ALJ noted that the tree’s rapid regrowth from 2013 to 2018 made it impossible to conclude that the original tree must have been planted by the developer in 2000.

• Conclusion: The Petitioner failed to meet the “preponderance of the evidence” burden of proof, and the petition was dismissed.

Rehearing Decision (January 31, 2019)

• Rejection of Petitioner’s Inferences: The ALJ characterized the Petitioner’s evidence regarding the tree’s age and the irrigation system as “suppositions and inferences.”

• Credibility of Respondent’s Testimony: In contrast, the ALJ found the testimony of HOA President Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.”

• Definitive Factual Finding: Based on Ms. Karpinski’s testimony, the ALJ concluded there was “no evidence there was any landscaping or improvements originally installed by Declarant.”

• Final Conclusion: As the precondition of Section 7.1.4 (that landscaping be “originally installed by Declarant”) was not met, the HOA had no maintenance duty for the Petitioner’s backyard. The Petitioner again failed to establish his case by a preponderance of the evidence, and the petition was dismissed with finality.

Study Guide: Prall v. Villas at Tierra Buena HOA

Short Answer Quiz

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

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

2. What specific section of the governing documents did the Petitioner allege was violated, and what was the central claim of his petition?

3. Describe the key physical differences between the “interior homes” and “exterior homes” within the Villas at Tierra Buena community as detailed in the hearing.

4. What incident in 2018 prompted the HOA to issue a “Courtesy Letter” to the Petitioner, and what action did the letter request?

5. Explain the two conflicting interpretations of the term “Private Yard” as argued by the Petitioner and the Respondent.

6. What was the Petitioner’s claim regarding the HOA’s past maintenance practices in his backyard, and how did the Respondent counter this assertion?

7. What is the legal standard of proof the Petitioner was required to meet, and how is this standard defined in the legal decision?

8. According to the Administrative Law Judge’s decisions, what was the single most critical point the Petitioner failed to prove, which ultimately led to the dismissal of his case?

9. During the rehearing, what crucial testimony was provided by the HOA’s witness, Maureen Karpinski, and why was it deemed the “only credible evidence” on the matter?

10. What was the final outcome of both the initial hearing on September 4, 2018, and the subsequent rehearing on January 11, 2019?

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Answer Key

1. Who were the primary parties in this legal dispute, and what were their respective roles? The Petitioner was Travis Prall, the homeowner who filed the dispute. The Respondent was the Villas at Tierra Buena Homeowners Association (HOA), which was defending against the Petitioner’s claims. The case was heard by Administrative Law Judge Tammy L. Eigenheer.

2. What specific section of the governing documents did the Petitioner allege was violated, and what was the central claim of his petition? The Petitioner alleged a violation of Section 7.1.4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). His central claim was that the HOA violated this section by neglecting its duty to perform yard maintenance in his backyard, which he argued was a “visible public yard.”

3. Describe the key physical differences between the “interior homes” and “exterior homes” within the Villas at Tierra Buena community as detailed in the hearing. The exterior homes feature six to seven-foot-tall block wall fences enclosing their backyards. In contrast, the interior homes, including the Petitioner’s, have a shorter back wall consisting of a two-foot block wall topped with a two-foot aluminum fence, making the total height approximately four feet and more visible from a common walkway.

4. What incident in 2018 prompted the HOA to issue a “Courtesy Letter” to the Petitioner, and what action did the letter request? In 2018, the HOA had a “pony wall” in the Petitioner’s backyard repaired and was informed by the repair company, Sun King Fencing & Gates, that the wall had buckled due to tree roots. Consequently, the HOA issued a Courtesy Letter on May 3, 2018, requesting that the Petitioner “trim or remove the tree in the back yard causing damage to the pony wall.”

5. Explain the two conflicting interpretations of the term “Private Yard” as argued by the Petitioner and the Respondent. The Respondent argued that a yard is considered a “Private Yard” if it is enclosed or shielded from view, meaning any enclosed yard qualified. The Petitioner argued that the definition should be read to mean a yard is private only if it is enclosed so that it is not generally visible from neighboring property, implying visibility was the key factor.

6. What was the Petitioner’s claim regarding the HOA’s past maintenance practices in his backyard, and how did the Respondent counter this assertion? The Petitioner testified that from 2010 to 2013, the HOA had provided landscaping maintenance for his backyard. The Respondent denied this claim, stating that it had never provided any landscaping maintenance to any backyards in the community and raised liability concerns about entering residents’ enclosed yards.

7. What is the legal standard of proof the Petitioner was required to meet, and how is this standard defined in the legal decision? The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence.” This standard is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.

8. According to the Administrative Law Judge’s decisions, what was the single most critical point the Petitioner failed to prove, which ultimately led to the dismissal of his case? The judge ruled that the Petitioner failed to present evidence proving that the tree in his backyard was “originally installed by the Declarant” (the developer). According to Section 7.1.4 of the CC&Rs, the HOA’s maintenance responsibility only applied to landscaping and improvements installed by the original community developer.

9. During the rehearing, what crucial testimony was provided by the HOA’s witness, Maureen Karpinski, and why was it deemed the “only credible evidence” on the matter? Maureen Karpinski testified that none of the homes in the community were sold with any landscaping or irrigation in the backyards and that they were “just dirt” at the time of purchase. Her testimony was considered credible because she was a real estate agent involved in the initial sales, had walked the community with many buyers during construction, and was herself an original buyer.

10. What was the final outcome of both the initial hearing on September 4, 2018, and the subsequent rehearing on January 11, 2019? In both the initial decision issued on September 24, 2018, and the final decision issued after the rehearing on January 31, 2019, the Petitioner’s petition was dismissed. The judge concluded in both instances that the Petitioner had failed to establish by a preponderance of the evidence that the HOA had violated the CC&Rs.

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Essay Questions

Instructions: The following questions are designed for longer, essay-style answers. Do not provide answers.

1. Analyze the competing interpretations of “Public Yard” versus “Private Yard” as defined in Section 1.38 of the CC&Rs. Explain why the Administrative Law Judge ultimately found it unnecessary to rule on this specific issue to reach a decision.

2. Discuss the concept of “burden of proof” as it applied in this case. How did the “preponderance of the evidence” standard shape the proceedings, and what specific types of evidence (or lack thereof) were most influential in the judge’s final decision?

3. Trace the timeline of the dispute over the tree in Travis Prall’s backyard, from the 2014 storm to the final legal decision in 2019. How did each key event contribute to the escalation of the conflict and the arguments presented at the hearings?

4. Compare the evidence presented by Travis Prall with the evidence presented by the Villas at Tierra Buena HOA at the rehearing. Why did the judge characterize Prall’s evidence as “suppositions and inferences” while deeming the HOA’s evidence “credible”?

5. Section 7.1.4 of the CC&Rs contains the phrase “as originally installed by Declarant.” Explain the critical importance of this phrase to the outcome of the case and how it became the dispositive legal issue, overshadowing all other arguments.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, weighs evidence, and makes legal decisions, in this case, Tammy L. Eigenheer.

Arizona Department of Real Estate (Department)

The state agency with which the initial Homeowners Association (HOA) Dispute Process Petition was filed.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the Petitioner bore the burden of proof.

An acronym for Declaration of Covenants, Conditions, Restrictions and Easements, which are the governing legal documents for a planned community.

Common Area

Areas within the community maintained by the HOA for the benefit of all residents. The HOA provides landscaping for these areas.

Courtesy Letter

A formal notice sent by the HOA to a homeowner regarding a potential violation or required action. In this case, it requested the removal of a tree causing damage.

Declarant

The original developer of the planned community who installed the initial infrastructure and landscaping.

HOA Dispute Process Petition

The formal document filed with the Arizona Department of Real Estate by a homeowner to initiate a legal hearing regarding an alleged violation by their HOA.

Improvements

A term used in the CC&Rs referring to any additions to a lot other than the main residential dwelling, including landscaping.

Petitioner

The party who initiates a legal action or files a petition. In this case, the homeowner Travis Prall.

Pony Wall

A term used to describe the short, two-foot-tall block wall in the backyards of the interior homes, which was buckling due to tree roots.

Preponderance of the Evidence

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

Private Yard

As defined in the CC&Rs, a portion of a yard “which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property.” The interpretation of this definition was a point of contention.

Public Yard

As defined in the CC&Rs, the portion of a yard “which is generally visible from Neighboring Property,” regardless of its location on the lot. The HOA is responsible for maintaining landscaping originally installed by the Declarant in Public Yards.

Respondent

The party against whom a petition is filed; the party that must respond to the claims. In this case, the Villas at Tierra Buena HOA.

Visible from Neighboring Property

A term defined in the CC&Rs to mean an object that would be visible to a six-foot-tall person standing on a neighboring property. It includes a specific exception for objects visible only through a wrought iron fence.

As defined in the CC&Rs, “the portion of the Lot devoted to Improvements other than the Residential Dwelling.”

⚖️

18F-H1818053-REL-RHG

2 sources

These documents are two Administrative Law Judge Decisions from the Arizona Office of Administrative Hearings concerning a dispute between Travis Prall, the Petitioner, and the Villas at Tierra Buena HOA, the Respondent. The first document outlines the initial decision, dated September 24, 2018, which dismissed Mr. Prall’s petition arguing the HOA violated their Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs) by neglecting yard maintenance. The second document is the decision following a rehearing requested by the Petitioner, dated January 31, 2019, which reaffirmed the initial dismissal, concluding that Mr. Prall failed to prove that the landscaping in question was originally installed by the Declarant, a prerequisite for the HOA’s maintenance responsibility under the CC&Rs. Both decisions rely heavily on interpreting sections of the CC&Rs, particularly the definitions of “Public Yard” versus “Private Yard,” to determine the HOA’s obligation. Ultimately, both rulings found that the Petitioner did not meet his burden of proof by a preponderance of the evidence.

Case Participants

Petitioner Side

  • Travis Prall (petitioner)
    Appeared on his own behalf

Respondent Side

  • Lydia Pierce Linsmeier (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Represented Villas at Tierra Buena HOA
  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Represented Villas at Tierra Buena HOA
  • Maureen Karpinski (board member)
    Villas at Tierra Buena HOA
    President of the Board; testified
  • Frank Peake (property manager)
    Pride Community Management
    Owner of Pride Community Management; testified
  • Rebecca Stowers (community manager)
    Community Manager; testified at initial hearing

Neutral Parties

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

Annette Cohen vs. CBS 136 Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1818033-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-06-26
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Annette Cohen Counsel —
Respondent CBS 136 Homeowners Association Counsel Brian E. Ditsch

Alleged Violations

A.R.S. § 33-1258(A)

Outcome Summary

Petitioner was deemed the prevailing party because Respondent established a technical violation of A.R.S. § 33-1258(A) by failing to provide requested documents within the 10-day limit. However, the Administrative Law Judge found a civil penalty was not appropriate given the circumstances.

Key Issues & Findings

Failure to provide requested association records within 10 business days

Petitioner requested sign-in sheets for the January 10, 2018, and February 15, 2018, CBS HOA meetings. Respondent acknowledged a technical violation of the statute by failing to provide the requested documents within the required 10-day timeframe, although they were ultimately provided prior to the hearing.

Orders: Respondent must comply with the applicable provisions of A.R.S. § 33-1258(A) in the future, and pay Petitioner her filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1258(A)

Analytics Highlights

Topics: records request, failure to provide documents, condominium owners association, filing fee refund
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1258
  • A.A.C. R2-19-119
  • A.R.S. § 33-1258(A)
  • A.R.S. §32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

18F-H1818033-REL Decision – 642888.pdf

Uploaded 2026-04-24T11:11:47 (74.5 KB)

18F-H1818033-REL Decision – 655537.pdf

Uploaded 2026-04-24T11:11:50 (83.3 KB)

18F-H1818033-REL Decision – 642888.pdf

Uploaded 2026-01-23T17:23:22 (74.5 KB)

18F-H1818033-REL Decision – 655537.pdf

Uploaded 2026-01-23T17:23:25 (83.3 KB)

Administrative Hearing Briefing: Cohen v. CBS 136 Homeowners Association

Executive Summary

This document synthesizes the findings and decision from the administrative hearing case Annette Cohen v. CBS 136 Homeowners Association (No. 18F-H1818033-REL). The core of the dispute was the Homeowners Association’s (HOA) failure to provide requested documents—specifically, meeting sign-in sheets—to a member, Annette Cohen, within the ten-business-day timeframe mandated by Arizona statute A.R.S. § 33-1258.

At the hearing, the Respondent HOA acknowledged this “technical violation,” attributing the delay to operational difficulties arising from a recent change in management companies. The Petitioner, Ms. Cohen, argued the delay was intentional and warranted a civil penalty.

The Administrative Law Judge, Tammy L. Eigenheer, found that the HOA did violate the statute. In the final order, the Judge declared Ms. Cohen the prevailing party and mandated future compliance by the HOA. While a civil penalty was deemed inappropriate under the circumstances, the Judge ordered the HOA to reimburse Ms. Cohen’s $500 filing fee.

Case Overview

Entity / Individual

Petitioner

Annette Cohen

Respondent

CBS 136 Homeowners Association (CBS)

Respondent’s Counsel

Brian Ditsch, Sacks Tierney P.A.

Respondent’s Mgmt. Co.

Key Witness

Susan Rubin (PRM)

Adjudicating Body

Office of Administrative Hearings, Phoenix, Arizona

Administrative Law Judge

Tammy L. Eigenheer

Case Number

18F-H1818033-REL

Hearing Date

June 6, 2018

Decision Date

June 26, 2018

Chronology of the Dispute

The dispute centered on two separate sets of document requests made by Petitioner Annette Cohen.

• Request 1 (January 10 Meeting):

◦ On or about Jan. 10, 2018: Ms. Cohen requested the sign-in sheets from the annual meeting held on this date.

◦ Jan. 2018: The management company PRM took over management of the CBS 136 HOA.

◦ Feb. 15, 2018: After more than a month, and after two scheduled review appointments were cancelled by the management company, the sign-in sheets were finally provided to Ms. Cohen by email.

• Request 2 (February 15 Meeting):

◦ Feb. 19, 2018: Ms. Cohen requested the sign-in sheets from the February 15, 2018 HOA meeting. Receipt of this request was acknowledged by PRM.

◦ Feb. 21, 26, 27 & March 5, 2018: Ms. Cohen made repeated follow-up requests for the same information.

• Formal Proceedings:

◦ March 9, 2018: Ms. Cohen filed a formal petition with the Arizona Department of Real Estate.

◦ April 10, 2018: The Respondent HOA filed an answer denying all allegations.

◦ June 6, 2018: An administrative hearing was held. The documents had been provided to Ms. Cohen at some point prior to this hearing.

◦ June 26, 2018: The Administrative Law Judge issued the final decision.

Core Allegation and Legal Framework

Petitioner’s Allegation

Annette Cohen alleged that the CBS 136 Homeowners Association violated A.R.S. Title 33, Chapter 16, Section 33-1258 by failing to provide association records for review and copying within the statutorily required timeframe.

Governing Statute: A.R.S. § 33-1258(A)

The legal basis for the petition is Arizona Revised Statute § 33-1258(A), which governs a member’s right to access association records. The statute states, in relevant part:

“all financial and other records of the association shall be made reasonably available for examination by any member… The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member… the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.”

The petitioner bears the burden of proving a violation by a preponderance of the evidence, defined as evidence that “shows that the fact sought to be proved is more probable than not.”

Arguments and Evidence Presented at Hearing

Once the Respondent acknowledged the delay, the hearing focused solely on determining the appropriate remedy.

Petitioner’s Position (Annette Cohen)

• Intentional Negligence: Ms. Cohen argued that the Respondent “intentionally ignored her request for the documents.”

• Request for Penalty: Based on the belief of intentional neglect, she asserted that a civil penalty was an appropriate remedy.

• Unreasonable Delay: She noted that the documents “could have easily been emailed to her within the 10 day deadline,” but that the HOA’s management company did not present this as an option until after the deadline had already passed.

Respondent’s Position (CBS 136 HOA)

• Acknowledged Violation: At the June 6, 2018 hearing, the Respondent “acknowledged that the requested documents were not provided within the 10 day timeframe set forth in statute.”

• Mitigating Circumstances: The defense centered on testimony from Susan Rubin of the management company, PRM. Ms. Rubin testified to the following:

◦ No requests are “ever purposefully ignored.”

◦ PRM had only taken over management of the HOA in January 2018.

◦ At the time of the requests, PRM was “still getting documents from the former management company.”

◦ The delay was not due to ignoring the request, but because it “took a little longer than expected to provide the documents.”

Administrative Law Judge’s Decision and Order

Findings and Conclusions

• Violation Established: The Judge concluded there was “no dispute that Respondent failed to provide the requested documents within 10 days.” Therefore, the Petitioner “established by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”

• Rejection of Civil Penalty: Despite the Petitioner’s argument, the Administrative Law Judge did “not find such a penalty to be appropriate given the circumstances in this matter.”

Final Order

The Judge issued a three-part order binding on the parties:

1. Prevailing Party: The Petitioner, Annette Cohen, is “deemed the prevailing party.”

2. Future Compliance: The Respondent, CBS 136 Homeowners Association, is ordered to “comply with the applicable provisions of A.R.S. § 33-1258(A) in the future.”

3. Reimbursement of Filing Fee: The Respondent must pay the Petitioner her filing fee of $500.00 directly to her within thirty (30) days of the order.

Study Guide: Cohen v. CBS 136 Homeowners Association

Short-Answer Quiz

Instructions: Please answer the following ten questions in 2-3 complete sentences, using only the information provided in the case documents.

1. Who were the primary parties involved in case No. 18F-H1818033-REL, and what were their respective roles?

2. What specific documents did the Petitioner, Annette Cohen, request from the Respondent?

3. According to the petition, what was the core legal violation alleged by Ms. Cohen against the Homeowners Association?

4. What was the timeline for the Respondent’s failure to produce the sign-in sheets from the January 10, 2018 meeting?

5. How did the Respondent initially respond to the petition after it was filed with the Arizona Department of Real Estate?

6. What admission did the Respondent make at the June 6, 2018 hearing?

7. What was the Respondent’s explanation for the delay in providing the requested documents to the Petitioner?

8. What remedy did the Petitioner argue was appropriate for the violation, and on what grounds?

9. What legal standard of proof was the Petitioner required to meet, and did the judge find that she met it?

10. What were the three components of the final Order issued by the Administrative Law Judge?

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Answer Key

1. The primary parties were Annette Cohen, who was the Petitioner, and the CBS 136 Homeowners Association, which was the Respondent. The Petitioner is the party who filed the complaint, and the Respondent is the party against whom the complaint was filed.

2. The Petitioner requested the sign-in sheets from two separate meetings. She requested the sign-in sheets from the January 10, 2018 annual meeting and the sign-in sheets from the February 15, 2018 CBS HOA meeting.

3. The core legal violation alleged by Ms. Cohen was that the Respondent had violated Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Section 33-1258. This statute requires homeowner associations to provide requested records to members for examination or copying within a ten-business-day timeframe.

4. Ms. Cohen requested the January 10, 2018 sign-in sheets on or about that same date (January 10). She did not receive them via email until February 15, 2018, which is well beyond the ten-business-day limit stipulated by law.

5. On or about April 10, 2018, the Respondent filed an answer to the petition. In this official response, the Respondent denied all of the allegations made by the Petitioner.

6. At the June 6, 2018 hearing, the Respondent acknowledged its failure to comply with the law. The Respondent admitted that the requested documents were not provided within the 10-day timeframe set forth in the statute, constituting a technical violation.

7. The Respondent, through the testimony of Susan Rubin from its management company PRM, explained the delay was not intentional. Ms. Rubin stated that PRM had just taken over management of the HOA in January 2018 and was still in the process of getting documents from the former management company.

8. The Petitioner argued that a civil penalty was the appropriate remedy. She contended that the Respondent intentionally ignored her requests and could have easily emailed the documents within the deadline, but failed to do so until after the deadline had passed.

9. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The judge found that she successfully met this standard because there was no dispute that the Respondent failed to provide the documents within the required 10 days.

10. The three components of the final Order were: 1) The Petitioner, Annette Cohen, was deemed the prevailing party; 2) The Respondent was ordered to comply with A.R.S. § 33-1258(A) in the future; and 3) The Respondent was ordered to pay the Petitioner’s $500.00 filing fee within thirty days.

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Essay Questions

Instructions: The following questions are designed for longer, essay-format responses. Use the provided case documents to formulate a comprehensive analysis.

1. Analyze the arguments presented by both the Petitioner and the Respondent regarding the appropriate remedy for the acknowledged statutory violation. Evaluate the mitigating circumstances offered by the Respondent and discuss why the Administrative Law Judge may have found them persuasive enough to deny a civil penalty while still finding in favor of the Petitioner.

2. Discuss the legal framework governing disputes between property owners and condominium associations in Arizona as outlined in the case documents. Explain the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings, and detail the specific requirements of A.R.S. § 33-1258(A).

3. Examine the concept of “preponderance of the evidence” as defined in the judge’s decision. Explain how the Petitioner successfully met this burden of proof, particularly in light of the Respondent’s initial denial of all allegations versus its later admission at the hearing.

4. Deconstruct the final Order issued by Judge Tammy L. Eigenheer. What were the three distinct parts of the Order, and what legal and practical purpose did each part serve in resolving the dispute, compensating the Petitioner, and ensuring future compliance by the Respondent?

5. Trace the procedural history of this case, creating a timeline of key events from Ms. Cohen’s first document request to the issuance of the final Order. Discuss the significance of each step, including the multiple requests, the petition filing, the Respondent’s answer, the hearing, and the final decision.

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Glossary of Key Terms

Definition

Administrative Law Judge

The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision.

A.R.S. § 33-1258(A)

The specific section of Arizona Revised Statutes cited in the case. It mandates that a homeowners association must make records available for member examination within ten business days and may charge up to fifteen cents per page for copies.

Burden of Proof

The obligation on a party in a legal proceeding to prove their assertions. In this case, the Petitioner bore the burden of proving the Respondent violated the statute.

CBS 136 Homeowners Association

The Respondent in the case; an association of condominium owners located in Sun City West, Arizona.

Department

The Arizona Department of Real Estate, the state agency with jurisdiction to hear disputes between property owners and condominium owners associations.

Findings of Fact

The section of the decision that outlines the factual history and evidence presented in the case, as determined by the judge.

Office of Administrative Hearings

The state office where the formal hearing on the petition was conducted.

Petitioner

The party who initiates a legal action by filing a petition. In this case, the Petitioner was Annette Cohen.

Preponderance of the Evidence

The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”

The management company that took over management of the CBS 136 Homeowners Association in January 2018.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the CBS 136 Homeowners Association.

Technical Violation

An acknowledged infringement of a rule or statute where the substance of the rule may not have been maliciously violated. The Respondent admitted to a technical violation of the 10-day timeframe for document production.

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18F-H1818033-REL

2 sources

Both documents are identical excerpts from an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings, concerning a dispute between Annette Cohen (Petitioner) and the CBS 136 Homeowners Association (Respondent). The case, No. 18F-H1818033-REL, addressed the Petitioner’s claim that the Respondent violated A.R.S. § 33-1258(A) by failing to provide requested association meeting sign-in sheets within the mandated ten-day period. Though the Respondent acknowledged a technical violation of the statute, the Administrative Law Judge determined that a civil penalty was not appropriate given the circumstances, such as the change in management. Ultimately, the Petitioner was deemed the prevailing party, and the Respondent was ordered to comply with the statute in the future and reimburse the Petitioner’s $500.00 filing fee.

2 sources

Based on 2 sources

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Case Participants

Petitioner Side

  • Annette Cohen (petitioner)
    Appeared on her own behalf

Respondent Side

  • Brian Ditsch (respondent attorney)
    Sacks Tierney P.A.
  • Susan Rubin (witness)
    PRM (management company)
    Testified for Respondent

Neutral Parties

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

Other Participants

  • Felicia Del Sol (clerical staff)
    Transmitted the decision

Debbie Westerman v. Bridgewood Townhomes

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Case Summary

Case ID 18F-H1818028-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-26
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding the Respondent HOA did not unreasonably deny the Petitioner's architectural request. The HOA's standard specification requiring 4” x 8” x 16” CMU blocks for courtyard walls was found to be reasonable for maintaining architectural continuity consistent with the original Al Beadle design of the community.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debbie Westerman Counsel —
Respondent Bridgewood Nine 30 Property Owners Association, Inc. aka Bridgewood Townhomes Counsel Mark E. Lines and R. Patrick Whelan

Alleged Violations

CC&R § 5(G)

Outcome Summary

The ALJ denied the petition, concluding the Respondent HOA did not unreasonably deny the Petitioner's architectural request. The HOA's standard specification requiring 4” x 8” x 16” CMU blocks for courtyard walls was found to be reasonable for maintaining architectural continuity consistent with the original Al Beadle design of the community.

Why this result: Petitioner failed to prove that the HOA's denial was unreasonable or that the specified 4” x 8” x 16” CMU block was inferior to the 8” x 8” x 16” CMU block she requested, and compliance with the HOA's reasonable specifications was required.

Key Issues & Findings

Unreasonable denial of architectural request to build a courtyard wall

Petitioner alleged the HOA violated CC&R § 5(G) by unreasonably denying her request to construct a courtyard wall using 8” x 8” x 16” CMU blocks, which did not comply with the HOA's Wall Construction Specifications & Conditions requiring 4” x 8” x 16” CMU blocks.

Orders: Petition denied because Petitioner failed to establish that CC&R § 5(G) required the Respondent to approve her Architectural Request which did not comply with Respondent’s Wall Construction Specifications & Conditions.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • CC&R § 5(G)
  • CC&R § 7(B)
  • CC&R § 5(J)

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Wall Construction, CMU block, Architectural Standard
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • 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

18F-H1818028-REL Decision – 631265.pdf

Uploaded 2026-04-25T09:57:11 (161.6 KB)

18F-H1818028-REL Decision – 631265.pdf

Uploaded 2026-01-23T17:23:15 (161.6 KB)

Briefing Document: Westerman v. Bridgewood Townhomes HOA (Case No. 18F-H1818028-REL)

Executive Summary

This document synthesizes the findings and decision in the case of Debbie Westerman versus the Bridgewood Nine 30 Property Owners Association, Inc. (HOA). The central conflict involved the HOA’s denial of Ms. Westerman’s architectural request to construct a courtyard wall using 8” x 8” x 16” concrete masonry unit (CMU) blocks, which deviated from the association’s established standard of 4” x 8” x 16” CMU blocks.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision rested on the finding that the HOA’s architectural standards were reasonable and established to maintain the community’s original design integrity. The petitioner failed to meet the burden of proof required to show that the HOA’s denial was unreasonable or that the specified building materials were in any significant way inferior. The HOA successfully argued that its “Wall Construction Specifications & Conditions,” in place since 2005, were created to preserve the architectural continuity of the original “Al Beadle design” and have been consistently applied to numerous other homeowner projects.

1. Case Overview and Core Dispute

• Parties:

◦ Petitioner: Debbie Westerman, owner of condominium unit 31 in Bridgewood Townhomes.

◦ Respondent: Bridgewood Nine 30 Property Owners Association, Inc. (also known as Bridgewood Townhomes).

• Jurisdiction: The case was heard by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate on January 23, 2018.

• Core Allegation: The petitioner alleged that the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5(G) by unreasonably denying her request to build a courtyard wall with 8” x 8” x 16” CMU blocks. The HOA’s established specification required the use of 4” x 8” x 16” CMU blocks.

2. Chronology of the Dispute

The key events leading to the administrative hearing occurred between October 2017 and January 2018.

Oct 25, 2017

Michael Brubaker, the HOA Board President, emailed the petitioner with the association’s “Wall Construction Specifications & Conditions.”

Oct 25, 2017

The petitioner submitted an Architectural Request to build a wall with 8″ x 8″ x 16″ CMU blocks, acknowledging the deviation from specifications.

Oct 25, 2017

Mr. Brubaker sent a follow-up email cautioning the petitioner not to pre-order non-conforming materials as her request was not yet approved.

Nov 29, 2017

Mr. Brubaker emailed the petitioner, acknowledging her request as “extraordinary” and stating the Board would need to meet to consider it.

Dec 28, 2017

The petitioner was formally notified of a Board meeting scheduled for January 2, 2018, to review her request.

Jan 2, 2018

The petitioner attended the Board meeting. The Board unanimously rejected her request because it was contrary to the established specifications and “the historical aspects of our compliance structure.” The Board noted its willingness to approve a compliant wall, but the petitioner “stated that she [was] unwilling to comply.”

Jan 8, 2018

The HOA’s attorney sent a letter to the petitioner summarizing the legal basis for the denial.

Jan 23, 2018

The petitioner filed her formal petition with the Arizona Department of Real Estate.

3. Petitioner’s Arguments and Evidence (Debbie Westerman)

The petitioner’s case was built on three main arguments: the superiority of her proposed materials, the inconsistency of community standards, and the questionable validity of the HOA’s rules.

• Material Superiority: The petitioner claimed her proposed 8” x 8” x 16” blocks were stronger, less expensive, and visually identical to the required blocks.

◦ Evidence: She testified that three different contractors advised her that the larger blocks would be cheaper due to needing fewer units and less mortar.

◦ Evidence: Her subcontractor, Richard Ross, testified that using twice as many blocks (as required by the 4″ specification) “doubles the chance of the wall failing.”

• Inconsistent Community Standards: The petitioner argued that the HOA did not enforce a uniform aesthetic, negating the need for strict adherence to the block size specification.

◦ Evidence: She submitted photographs (Exhibits A5, A6) of walls at units 34 and 38, owned by Board President Michael Brubaker, which she claimed were built with larger blocks visible through stucco.

◦ Evidence: She submitted a photograph (Exhibit A11) showing courtyard walls of different heights, although wall height was not the subject of her dispute.

• Questionable Rule Authenticity: At the hearing, the petitioner challenged the validity of the “Wall Construction Specifications & Conditions” document itself.

◦ Argument: She argued the document was not authentic because the HOA did not produce the official Board meeting minutes from 2005 when the rules were allegedly adopted. This challenge was raised for the first time at the hearing.

4. Respondent’s Arguments and Evidence (Bridgewood HOA)

The HOA’s defense was centered on its legal authority, the reasonableness of its established architectural standards, and the consistent enforcement of its rules.

• Adherence to Established Architectural Standards: The HOA’s primary defense was that its denial was based on a reasonable and long-standing architectural rule.

◦ Authority: The HOA cited CC&R § 5(J), which grants the Board the authority to adopt reasonable rules concerning the use of common elements. Rule 7(a) requires Board approval for any exterior alterations.

◦ Evidence: The HOA submitted the “Wall Construction Specifications & Conditions” (Exhibit 3), which Mr. Brubaker credibly testified was adopted by the Board on March 22, 2005.

◦ Purpose of the Rule: Mr. Brubaker stated the rule’s purpose was to ensure architectural continuity. An email to the petitioner (Exhibit 7) explained:

• Consistent Enforcement: The HOA demonstrated that the rule was not arbitrary but had been consistently applied.

◦ Evidence: Mr. Brubaker testified that since the program’s adoption, “twenty-nine homeowners have had applications approved and constructed courtyard walls to specification.” Four additional compliant applications were approved since the petitioner’s submission. A photograph of a recently completed, compliant wall (Ms. Warren’s) was submitted as Exhibit 16.

• Rebuttal of Petitioner’s Claims: The HOA directly countered the petitioner’s key arguments.

◦ On Inconsistency: Mr. Brubaker testified that the non-conforming walls at units 34 and 38 were constructed before 1980 by the original developer, prior to the HOA assuming control of the property (Exhibit 14).

◦ On Structural Integrity: The HOA submitted two technical bulletins from the National Concrete Masonry Association (Exhibits 19 and 20). These documents stated that 4″ high (“half-high”) units can be considered “structurally equivalent to their corresponding 8-in. (203-mm) high unit” as long as the cross-section is the same.

◦ On Cost: The HOA submitted a bid from J E Bowen Construction for $6,165.00 to build a compliant wall for the petitioner’s unit (Exhibit 17). It also noted that another homeowner’s recent compliant wall cost only $4,268.23 (Exhibit 15).

5. Administrative Law Judge’s Conclusions and Final Order

The Administrative Law Judge (ALJ) found comprehensively in favor of the Respondent (HOA), denying the Petitioner’s petition.

• Burden of Proof: The ALJ established that the petitioner bore the burden of proving her case by a “preponderance of the evidence” and failed to do so.

• Reasonableness of HOA Standards: The decision affirmed the HOA’s right to establish and enforce aesthetic standards.

• Validity of Specifications: The petitioner’s challenge to the authenticity of the HOA’s rules was dismissed. The ALJ found that she “did not establish that Respondent’s Wall Construction Specifications & Conditions was fraudulent or improperly adopted.”

• Materiality of Block Type: The ALJ concluded that the petitioner failed to prove her central claim that the larger blocks were superior.

• Aesthetic Impact: The ALJ determined that the petitioner’s proposed wall would violate the community’s aesthetic standards, noting that a wall using the larger blocks “would be noticeably different from walls that were constructed in compliance with the Wall Construction Specifications & Conditions and other Al Beadle design elements.”

Final Order: “IT IS ORDERED that Petitioners’ petition is denied because she has not established that CC&R § 5(G) required the Respondent to approve her Architectural Request to build a block wall around her patio that did not comply with Respondent’s Wall Construction Specifications & Conditions.”

The order, issued on April 26, 2018, is binding unless a rehearing is requested within 30 days of service.

Study Guide: Westerman v. Bridgewood Nine 30 Property Owners Association, Inc.

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 18F-H1818028-REL, concerning a dispute between a homeowner and her homeowners’ association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case.

Short-Answer Quiz

Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.

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

2. What specific action by the Respondent was the Petitioner challenging in her petition?

3. According to the Respondent, what was the primary purpose of the “Wall Construction Specifications & Conditions”?

4. What were the three main arguments the Petitioner presented in favor of using 8” x 8” x 16” CMU blocks instead of the specified size?

5. How did the Petitioner attempt to demonstrate that the Respondent’s enforcement of wall specifications was inconsistent?

6. What was the Respondent’s explanation for the non-conforming walls cited by the Petitioner?

7. What evidence did the Respondent present to counter the Petitioner’s claim that the specified 4” x 8” x 16” CMU blocks were structurally inferior?

8. Which party bore the “burden of proof” in this case, and what did that require them to establish?

9. On what date did the Respondent’s Board of Directors originally adopt the Wall Construction Specifications & Conditions?

10. What was the final ruling in this case, and what was the judge’s primary reason for the decision?

Answer Key

1. The primary parties were Debbie Westerman, the Petitioner, and the Bridgewood Nine 30 Property Owners Association, Inc., the Respondent. Ms. Westerman owns condominium unit 31 in the Bridgewood Townhomes development and is therefore a member of the Respondent homeowners’ association.

2. The Petitioner was challenging the Respondent’s denial of her Architectural Request to build a wall around her patio. Specifically, she alleged that the Respondent had unreasonably denied her request to use 8” x 8” x 16” concrete masonry unit (CMU) block, which violated the association’s Covenants, Conditions, and Restrictions (CC&Rs).

3. The “Wall Construction Specifications & Conditions” were developed to provide architectural continuity and standards for courtyard walls. They were intended to ensure that any new walls conformed to the original Al Beadle design represented by other structures on the property, such as the perimeter wall and pool enclosure.

4. The Petitioner argued that her proposed 8” x 8” x 16” CMU blocks were stronger, less expensive (requiring fewer blocks and less mortar), and looked the same as the specified blocks. This information was based on advice she received from three different contractors.

5. The Petitioner submitted photographs of courtyard walls at unit nos. 34 and 38, which she testified had larger blocks visible through stucco. She used these examples to argue that walls within the community were not consistent.

6. The Respondent’s Board president, Michael Brubaker, testified that the walls for units 34 and 38 were constructed before 1980. This was before the original developer turned the property over to the Respondent homeowners’ association, and therefore before the current specifications were in place.

7. The Respondent submitted two technical documents (TEK 5-15 and TEK 2-2B) from the National Concrete Masonry Association. These documents stated that 4-inch high (“half-high”) units are structurally equivalent to their corresponding 8-inch high counterparts, provided the face shell and web thicknesses are the same.

8. The Petitioner, Ms. Westerman, bore the burden of proof. This required her to establish by a “preponderance of the evidence” that the Respondent violated CC&R § 5(G) by unreasonably denying her request.

9. Michael Brubaker, the Respondent’s Board president, credibly testified that the Board adopted the Wall Construction Specifications & Conditions on March 22, 2005.

10. The final ruling was that the Petitioner’s petition was denied. The judge concluded that the Petitioner failed to establish that the Respondent’s Board acted unreasonably in denying her request, as the Board’s decision to maintain architectural consistency with the original Al Beadle design was reasonable.

Suggested Essay Questions

Instructions: The following questions are designed for longer, essay-style responses to test a deeper understanding of the case’s themes and legal principles. Do not provide answers.

1. Analyze the legal concept of a “restrictive covenant.” Using the CC&Rs from the Bridgewood Townhomes development as an example, explain how these covenants function to regulate property use and how they are interpreted and enforced in a legal dispute.

2. Evaluate the evidence presented by both the Petitioner and the Respondent regarding the structural integrity and cost of the different CMU block sizes. Discuss the quality of the evidence (e.g., expert testimony, technical documents, contractor bids) and explain which side made a more compelling argument on this point.

3. Discuss the role and authority of a homeowners’ association Board of Directors as demonstrated in this case. How did the Board use its authority under the CC&Rs to create and enforce the “Wall Construction Specifications & Conditions,” and what does the judge’s decision say about the reasonableness of its actions?

4. The concept of “architectural continuity” and preserving the original “Al Beadle design” was central to the Respondent’s argument. Explain the significance of this argument and analyze why the Administrative Law Judge found it to be a reasonable basis for denying the Petitioner’s request.

5. Trace the procedural history of this dispute, from the Petitioner’s initial Architectural Request in October 2017 through the Administrative Law Judge’s final decision. What do the steps taken by both parties reveal about the formal processes for dispute resolution within this planned community?

Glossary of Key Terms

Definition (as used in the source document)

Administrative Law Judge (ALJ)

An independent judge (Diane Mihalsky) who presides over administrative hearings at the Office of Administrative Hearings, an agency separate from the Department of Real Estate.

Architectural Request

A formal application submitted by a homeowner to the homeowners’ association for approval of any alterations or additions to the exterior of a unit.

Covenants, Conditions, and Restrictions. A set of rules recorded with the county that governs the rights and obligations of property owners within a planned community or condominium development.

Concrete Masonry Unit. A standard-size rectangular block used in construction. In this case, the dispute centered on two sizes: 4” x 8” x 16” and 8” x 8” x 16”.

Common Area

Areas within the development owned by the Homeowners’ Association in trust for the benefit and use of all lot owners.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from members of homeowners’ associations.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties within its jurisdiction. In this case, the Bridgewood Nine 30 Property Owners Association, Inc.

Limited Common Elements

Areas, such as the patios or courtyards adjacent to individual units, that are part of the common area but are reserved for the exclusive use of a specific owner.

Petitioner

The party who files a petition initiating a legal action. In this case, the homeowner, Debbie Westerman.

Preponderance of the Evidence

The standard of proof required in this civil case. It is defined as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Respondent

The party against whom a petition is filed. In this case, the homeowners’ association, Bridgewood Nine 30 Property Owners Association, Inc.

Restrictive Covenant

A provision in a deed or CC&R that limits the use of the property. The judge notes that if unambiguous, these are enforced to give effect to the intent of the parties.

Subpoena Duces Tecum

A legal order requiring a person to appear and bring specified documents or evidence with them. The decision notes the Petitioner did not request one for the Board meeting minutes.

TEK 2-2B & TEK 5-15

Titles of technical publications from the National Concrete Masonry Association, submitted as evidence by the Respondent to demonstrate the structural equivalence of different-sized CMU blocks.

Why Your HOA Cares About Your Bricks: A Real-Life Legal Battle, Deconstructed

For many homeowners, the relationship with their Homeowners’ Association (HOA) is a source of quiet frustration. It often involves rules that seem arbitrary, overly specific, or just plain unreasonable. You want to make a practical improvement to your property, but the HOA’s governing documents stand in the way, citing regulations you never knew existed. This friction between individual desire and community standards is common, but rarely does it escalate into a formal legal dispute.

When it does, however, the results can be surprisingly illuminating. Such is the case of Debbie Westerman and the Bridgewood Townhomes HOA in Arizona. Their legal battle wasn’t over a major renovation or a loud party; it was about the specific size of concrete blocks for a new patio wall. On the surface, it seems like a minor disagreement. But a closer look at the administrative law judge’s decision reveals powerful, practical lessons for every homeowner about the hidden legal realities of community governance.

By deconstructing the judge’s final decision, we can uncover four critical lessons that reveal how HOAs wield power and how homeowners can protect themselves.

Takeaway 1: Aesthetic Vision Can Legally Outweigh Practicality

At the heart of the dispute was a simple disagreement over materials. The petitioner, Debbie Westerman, wanted to build her patio wall using 8″x8″x16″ concrete blocks. Her reasoning was entirely practical: a licensed contractor advised her that the larger blocks were “stronger, less expensive, and looks the same.” From a homeowner’s perspective, this seems like an open-and-shut case for approval.

The HOA, however, denied the request. Their position was based not on practicality, but on a specific design vision. The association’s rules, established back in 2005, explicitly required the use of 4″x8″x16″ blocks. The reason? To maintain “architectural continuity” with the property’s original “Al Beadle design.” This wasn’t a vague preference; it was a documented standard intended to conform new construction to the existing visual language of the community, as seen in the “property’s perimeter wall, the original block buildings, the pool area enclosure and buildings, the parking structures, and the walls around the parking areas.”

Ultimately, the judge sided with the HOA. The decision found that the association’s requirement was reasonable because it was aimed at keeping new construction consistent with “significant elements of Bridgewood Townhomes.” This is a crucial lesson: a homeowner’s logical arguments about cost, strength, and appearance can be legally superseded by a community’s well-documented commitment to a specific, even if less tangible, design aesthetic.

Takeaway 2: The Power is in the Paper Trail

The HOA’s entire case rested on the strength of a single key document: the “Wall Construction Specifications & Conditions.” This document, which the board officially adopted on March 22, 2005, clearly outlined the requirement for the 4-inch blocks.

Crucially, the petitioner only challenged the authenticity of this document for the first time during the hearing itself, arguing the HOA had not produced the original meeting minutes that adopted it. The judge deemed this last-minute challenge inadmissible. Why? Crucially, the judge noted that the homeowner had failed to use the proper legal procedures to demand the HOA produce those records ahead of time, making her challenge too little, too late. The HOA, meanwhile, demonstrated a long history of consistent enforcement. Before Ms. Westerman’s request, the association had already approved 29 other courtyard walls, all built according to the 2005 specifications.

This highlights a critical lesson: an HOA’s power is codified in its paper trail. The governing documents—from the Covenants, Conditions, and Restrictions (CC&Rs) down to specific board-adopted rules—carry immense legal weight.

Pro Tip: Your HOA’s governing documents are more than just the CC&Rs you received at closing. Formally request and review all board-adopted rules, architectural guidelines, and meeting minutes related to your planned project hiring a contractor or submitting an application.

Takeaway 3: The Burden of Proof Is on the Homeowner

Many people might assume that in a dispute, the powerful organization (the HOA) has the responsibility to prove its rules are fair and justified. The legal reality is often the exact opposite.

The judge’s decision explicitly stated that the “burden of proof” was on Ms. Westerman to establish that the HOA had acted unreasonably. It was not the HOA’s job to prove their rule was perfect; it was the homeowner’s job to prove the denial was improper. To meet this high legal standard, defined as a “preponderance of the evidence,” you need convincing proof.

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

This case provides a masterclass in what constitutes convincing proof. Ms. Westerman’s evidence that the 8-inch blocks were superior came from the testimony of her contractor’s unlicensed subcontractor. In sharp contrast, the HOA submitted two technical documents from the National Concrete Masonry Association—a neutral, expert authority—which demonstrated that the required 4-inch blocks are “structurally equivalent” to their 8-inch counterparts. The homeowner brought an opinion to a legal fight; the HOA brought expert documentation.

Actionable Advice: If you choose to challenge an HOA decision, understand that personal testimony and contractor opinions are often insufficient. To meet the ‘burden of proof,’ you must be prepared to counter the HOA’s documented rules with equally strong evidence, such as independent engineering reports, surveys, or expert testimony.

Takeaway 4: An HOA Rule Can Be a “Win-Win Program”

While it’s easy to view HOA rules as purely restrictive, the association’s board president, Michael Brubaker, offered a completely different perspective. He framed the wall policy not as a limitation, but as a benefit designed to increase the value and security of the entire community.

In an email to the petitioner, he explained the board’s original thinking behind allowing the walls in the first place, calling it a “win win program.”

A courtyard wall allowed homeowners to expand their homes with an exclusive-use courtyard space, enhance privacy, and improve security, which resulted in an increased individual property value that subsequently raised all property values. Additionally, the Association reduced costs by reducing the common area to be maintained. This is a win win program.

This viewpoint is bolstered by another critical fact: the HOA assumes maintenance responsibility for the walls after they are built. This reinforces the logic behind the rule. Uniformity isn’t just about aesthetics; it’s about the long-term, collective cost and labor of maintaining these structures, making a consistent standard a practical and financial concern for the entire association.

Conclusion: Beyond the Bricks

The dispute between Debbie Westerman and the Bridgewood Townhomes HOA was, on its face, about the size of concrete blocks. But the legal decision reveals a much deeper story about community living. It’s a story about how a shared aesthetic vision, when properly documented, can become legally enforceable. It’s a confirmation of the immense power of written rules and the critical importance of bringing credible evidence to a dispute. And it’s a reminder that the legal burden often falls on the individual to challenge the collective.

This case demonstrates that behind a seemingly petty disagreement lies a complex reality of legal precedent, established processes, and a community’s right to define and defend its character. The next time you encounter a seemingly arbitrary HOA rule, will you see it as a simple restriction, or will you look for the deeper story of community standards and legal precedent behind it?

Case Participants

Petitioner Side

  • Debbie Westerman (petitioner)
    Appeared on her own behalf
  • Kelly Zernich (witness)
    Petitioner's realtor
  • Richard Ross (witness)
    Petitioner's contractor's subcontractor

Respondent Side

  • Mark E. Lines (attorney)
    Shaw & Lines, LLC
  • R. Patrick Whelan (attorney)
    Shaw & Lines, LLC
  • Michael Brubaker (board member/witness)
    Respondent's Board president

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Barb Warren (homeowner/applicant)
    Application approved by the Board (used for comparison)
  • Felicia Del Sol (unknown)
    Transmitted the decision electronically

Charles Mandela vs. Blue Ridge Estates Homeowner Association

Posted on by

Case Summary

Case ID 18F-H1817006-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-12-06
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the homeowner's petition, finding that the HOA did not violate its CC&Rs by allowing play structures on properties that already contained a detached garage or shed, because play structures are not easily convertible into a second residence, which was the underlying concern of the relevant CC&R section.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles Mandela Counsel —
Respondent Blue Ridge Estates Homeowner Association Counsel Brian C. Axt, Esq.

Alleged Violations

CC&Rs § 3.1(a); Architectural Committee Aligned Standard 3(D)

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA did not violate its CC&Rs by allowing play structures on properties that already contained a detached garage or shed, because play structures are not easily convertible into a second residence, which was the underlying concern of the relevant CC&R section.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated CC&R § 3.1. The ALJ determined that the HOA correctly clarified the status of play structures through an amendment to the Architectural Committee's regulations.

Key Issues & Findings

Alleged violation of CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) regarding allowing play structures (swing sets, treehouses) when another detached structure (garage or shed) is present.

Petitioner alleged that the Respondent HOA violated CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) by permitting members to construct play structures (swingsets, treehouses, etc.) on properties that already contained one detached structure (garage or shed), arguing that the rules allowed only one detached structure of any type.

Orders: Petitioner's petition is denied because he failed to establish that CC&R § 3.1 prohibits play structures under any circumstances. All play structures that the Architectural Committee has previously approved are allowed to remain, and the Architectural Committee may consider and grant future Play Structure Approval Requests.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

Topics: HOA governance, CC&R interpretation, detached structures, play structures, Architectural Committee regulations, burden of proof
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

18F-H1817006-REL Decision – 604710.pdf

Uploaded 2026-04-24T11:07:52 (155.4 KB)

18F-H1817006-REL Decision – 604710.pdf

Uploaded 2026-01-23T17:21:47 (155.4 KB)

Briefing Document: Mandela v. Blue Ridge Estates Homeowner Association (No. 18F-H1817006-REL)

Executive Summary

This document synthesizes the findings of an Administrative Law Judge (ALJ) decision regarding a dispute between a homeowner, Charles Mandela (“Petitioner”), and the Blue Ridge Estates Homeowner Association (“Respondent”). The core issue was whether the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by permitting homeowners to install play structures (e.g., swing sets, treehouses) on lots that already contained another detached structure, such as a garage or shed.

The Petitioner argued that the HOA had historically enforced a strict “one detached structure” rule and that its recent allowance of play structures constituted a violation of CC&R § 3.1. In contrast, the Respondent contended that the underlying intent of the CC&Rs was to prevent secondary residential dwellings, not to prohibit recreational structures consistent with a family-oriented community. The HOA asserted it had properly amended its Architectural Committee regulations, not the CC&Rs, to clarify this distinction.

The ALJ ruled decisively in favor of the Respondent HOA. The central finding was that the intent of the restrictive covenant was to maintain the single-family residential character of the community. Because play structures cannot be easily converted into secondary residences, they are not inconsistent with this intent. The ALJ concluded that the HOA was not required to amend the CC&Rs (which requires a 75% member vote) but acted within its authority to amend its rules and regulations via a simple board vote. The Petitioner’s petition was denied.

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Core Allegation: The Petitioner alleged that the Respondent HOA violated CC&R § 3.1(a) and Architectural Committee Aligned Standard 3(D) by allowing members to build play structures, swing sets, or treehouses on properties that already had another detached structure like a garage or shed.

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

The Petitioner’s case was built on the premise of a long-standing, strict interpretation of the “one detached structure” rule.

• Core Argument: For 18 years, the Respondent interpreted CC&R § 3.1 to permit only one detached structure on any given lot, regardless of its type.

• Evidence and Testimony:

◦ Historical Enforcement: Testified that between 2002 and 2016, the HOA enforced this rule by removing nine non-compliant structures, including a gazebo, a playhouse, an observation deck, and a zipline structure.

◦ 2006 Legal Opinion: Submitted a February 7, 2006, letter from the law firm Carpenter Hazlewood, PLC, which opined on the ambiguity of CC&R § 3.1. The letter stated, “It still appears that only one structure (garage or shed) is permitted,” and supported the HOA’s ability to “enforce the ‘one detached structure’ requirement.” The letter did not specifically mention play structures.

◦ Invalid Approval Form: Presented a “Play Structure Approval Request” form he had drafted while on the board. This form incorrectly stated that the Board of Directors had voted on June 25, 2016, “to adopt changes to the CCR’s [sic], which will allow play structures.” Petitioner argued this was invalid because changing the CC&Rs requires a 75% vote of the membership, which was not obtained.

◦ Ancillary Documents: Submitted documents related to a housing discrimination claim filed by the HOA’s current president, Joseph Hancock, and a letter concerning another member. Petitioner testified these matters involved play structures, though the documents themselves did not mention CC&R § 3.1.

Respondent’s Position (Blue Ridge Estates HOA)

The Respondent’s defense centered on the purpose of the CC&Rs and its authority as a board to clarify and amend its own rules and regulations.

• Core Argument: The HOA did not violate the CC&Rs because the intent of the relevant articles is to prohibit secondary residential dwellings, not recreational structures suitable for a community intended to be a “uniquely planned recreation property.”

• Evidence and Testimony:

◦ Community Status: There are currently 16 swingsets or play structures within the 193-lot development. The HOA president, Joseph Hancock, testified he has a swingset used by his children, grandchildren, and neighbors.

◦ Legal Counsel: The HOA retained the firm of Poli & Ball, PLC, which opined that because the community is for recreation and family use, “[p]lay structures are perfectly consistent with recreation and family use.” The firm advised that the Architectural Committee’s regulations could be changed to reflect this without amending the CC&Rs. Another law firm, Carpenter Hazlewood, generally agreed with this opinion.

◦ Correction of Clerical Error: Mr. Hancock testified that the form submitted by the Petitioner contained a typographical error. The board’s intent in its June 25, 2016, vote was to amend the Architectural Committee’s regulations, not the CC&Rs.

◦ Board Meeting Minutes: The HOA submitted minutes from board meetings in December 2016 and October 2017. These minutes document the board’s discovery of the error on the website form and subsequent votes to formally clarify that the change was to the rules and regulations, not the CC&Rs, thereby ratifying its decision.

◦ Amended Approval Form: Respondent submitted the corrected “Play Structure Approval Request” form, which states, “Per the modified Rules and Regulations dated April 6, 2016, this form must be submitted to Architectural Committee for approval of any Play Structure.”

Governing Rules and Covenants

The dispute hinged on the interpretation and interplay of several key provisions in the community’s governing documents.

Document / Section

Key Provision

CC&R § 3.1

“No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage… No garage or shed shall be built prior to the issuance of a Coconino County building permit for the construction of a Single Family Residence.”

Architectural Regulation 3(D)

“One detached structure may, with Architectural Committee approval, be constructed on a property. The residence must be constructed and completed before the detached structure is built.”

CC&R § 4.2

“By a majority vote of the Board, the Association may, from time to time… adopt, amend and repeal rules and regulations to be known as the ‘Rules and Regulations.’”

CC&R § 12.2

Amending the Declaration of CC&Rs requires “the affirmative vote… or written consent of Members owning at least seventy-five percent (75%) of all Lots.”

Administrative Law Judge’s Findings and Legal Rationale

The ALJ found that the Petitioner failed to meet his burden of proof and that the Respondent acted properly within its authority.

• Intent of the Covenant: The Judge determined that CC&R Article III is fundamentally “concerned with keeping Respondent single-family residential by prohibiting structures and vehicles that could be used as a second residential dwelling on a lot.” This interpretation is supported by other rules in the article prohibiting mobile homes and clarifying that “If you can live/sleep in it, you cannot park it” in the development.

• Status of Play Structures: The decision concludes that a play structure “cannot be easily converted into a second residence.” Therefore, permitting a play structure in addition to a garage or shed is not inconsistent with the primary purpose of CC&R § 3.1.

• Board Authority vs. Member Vote: Because allowing play structures was not inconsistent with the CC&Rs, the Respondent was not required to amend the CC&Rs through a 75% member vote. Instead, the Board was empowered by CC&R § 4.2 to “amend the Architectural Committee’s regulations to provide clarification on the status of play structures” through a majority vote of the Board.

• History of Enforcement: The Judge found that the Petitioner failed to establish a uniform history of enforcement against play structures. Rather, “it appears that the status of play structures, swingsets, and tree houses has been unsettled and the subject of some contention,” partly due to the Petitioner’s own advocacy.

• Conclusion: The Respondent properly resolved the ambiguity by amending its regulations.

Final Order and Implications

• Decision: The petition was denied because the Petitioner did not establish that CC&R § 3.1 prohibits play structures under any circumstances.

• Outcome for the Community:

1. The HOA’s amendment of its rules to explicitly permit play structures was deemed valid.

2. All play structures previously approved by the Architectural Committee are allowed to remain on members’ properties.

3. The Architectural Committee is authorized to consider and approve future Play Structure Approval Requests that are submitted in accordance with the established regulations.

Study Guide for Administrative Law Judge Decision No. 18F-H1817006-REL

Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three sentences, based on the provided source document.

1. Who were the primary parties in case No. 18F-H1817006-REL, and what was their relationship?

2. What specific violation did the Petitioner, Charles Mandela, allege against the Respondent?

3. What is the legal standard of proof required in this case, and which party bears the initial burden?

4. According to the CC&Rs, what is the procedural difference between amending the CC&Rs and amending the “Rules and Regulations”?

5. What was the Petitioner’s primary evidence to support his claim that the HOA historically enforced a “one detached structure” rule?

6. How did the Respondent, Blue Ridge Estates HOA, legally justify its decision to permit play structures even on lots that already had a detached garage or shed?

7. How did the Respondent explain the document from its website which stated that the Board had voted to “adopt changes to the CCR’s”?

8. What did the law firm Poli & Ball conclude regarding the permissibility of play structures within the community?

9. What did Administrative Law Judge Diane Mihalsky determine was the primary intent of Article III of the CC&Rs?

10. What was the final Recommended Order issued by the Administrative Law Judge in this case?

——————————————————————————–

Quiz Answer Key

1. The primary parties were the Petitioner, Charles Mandela, and the Respondent, Blue Ridge Estates Homeowner Association. Mr. Mandela is a homeowner within the Blue Ridge Estates development and a member of the homeowners’ association.

2. The Petitioner alleged that the Respondent violated CC&Rs § 3.1(a) and Architectural Committee regulation 3(D). He claimed the HOA wrongly allowed members to build play structures, swing sets, or treehouses on their properties when another detached structure, such as a garage or shed, already existed.

3. The legal standard is “preponderance of the evidence,” which means the evidence must convince the judge that a contention is more probably true than not. The Petitioner, Charles Mandela, bears the initial burden of proof to establish that a violation occurred.

4. To amend the CC&Rs (the Declaration), an affirmative vote or written consent from members owning at least 75% of all lots is required. In contrast, the Board of Directors can adopt, amend, or repeal “Rules and Regulations” by a simple majority vote of the Board.

5. The Petitioner testified that between 2002 and 2016, the HOA removed nine non-compliant structures, including a gazebo and a playhouse. He also submitted a 2006 letter from the law firm Carpenter Hazlewood, which opined that the HOA could enforce a “one detached structure” requirement.

6. The Respondent argued that the intent of the CC&Rs was to prevent second residential dwellings on a lot, not to prohibit recreational items consistent with a family community. Therefore, the Board acted within its authority under CC&R § 4.2 to amend the Architectural Committee’s regulations to clarify that play structures are permitted.

7. The Respondent’s president, Joseph Hancock, testified that the wording was a typographical error made by the previous Chair of the Architectural Committee (the Petitioner). Board meeting minutes from December 2016 and October 2017 were submitted as evidence to show the Board’s actual intent was to modify the rules and regulations, not the CC&Rs.

8. The Poli & Ball law firm opined that play structures are “perfectly consistent with recreation and family use” in a community intended to be a planned recreation property. The firm concluded that the HOA could change the Architectural Committee’s regulations to allow them as long as the change was consistent with the CC&Rs.

9. The Judge concluded that the purpose of Article III is to keep the community single-family residential by prohibiting structures and vehicles that could be used as a second dwelling. Since a play structure cannot be easily converted into a second residence, allowing one did not violate the intent of the CC&Rs.

10. The Judge ordered that the Petitioner’s petition be denied. The Judge found that the Petitioner had not established that CC&R § 3.1 prohibits play structures under any circumstances, and that the HOA had properly resolved the issue by amending its regulations.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each, drawing upon specific facts, arguments, and legal principles from the source document.

1. Discuss the critical distinction between amending the community’s CC&Rs and amending the Architectural Committee’s regulations. Explain how this distinction became the central pivot upon which the entire case turned.

2. Analyze the evidence presented by both the Petitioner and the Respondent. Evaluate the strengths and weaknesses of each party’s exhibits and testimony, and explain why the Administrative Law Judge ultimately found the Respondent’s evidence more persuasive.

3. The “Conclusions of Law” section discusses the legal principle of interpreting restrictive covenants based on the “intent of the parties.” How did Judge Mihalsky apply this principle to CC&R § 3.1, and how did the community’s stated purpose as a “uniquely planned recreation property” influence this interpretation?

4. Charles Mandela, the Petitioner, was a former board member and president of the Architectural Committee who drafted one of the key documents in question. Discuss how his past involvement in HOA governance may have shaped his legal position and the evidence he presented.

5. Trace the timeline of the “play structure” controversy as detailed in the hearing evidence, from the 2015 discrimination claim to the “clarification vote” in October 2017. How does this sequence of events illustrate the challenges of community governance and rule interpretation within a homeowners’ association?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings at government agencies. In this case, the ALJ from the Office of Administrative Hearings heard the dispute between the homeowner and the HOA.

Architectural Committee

A committee within the homeowners’ association responsible for approving any construction, alteration, or improvement to the exterior of any property to ensure it complies with community standards.

Burden of Proof

The obligation of a party in a legal case to prove their allegations. In this hearing, the Petitioner had the burden to prove his claims by a preponderance of the evidence.

CC&Rs (Covenants, Conditions, and Restrictions)

A legally binding document that governs a planned community or subdivision. It outlines the rights and obligations of the homeowners and the homeowners’ association.

Declaration

The formal legal document that creates the homeowners’ association and its CC&Rs. In this case, amending the Declaration required a 75% vote of the members.

Detached Structure

A building on a property that is separate from the main residence. The dispute centered on whether play structures counted as the “one detached structure” permitted by the CC&Rs.

Improvements

A broad term defined in the CC&Rs (§ 1.17) to include buildings, garages, fences, walls, landscaping, and all other structures of every type and kind on a property.

Jurisdiction

The official power to make legal decisions and judgments. The judge noted that if Title 33 did not apply, the Office of Administrative Hearings would lack jurisdiction to hear the case.

Petitioner

The party who files a petition initiating a legal action. In this case, homeowner Charles Mandela.

Preponderance of the Evidence

The standard of proof in most civil cases. It requires the trier of fact (the judge) to be convinced that a claim is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowner Association.

Restrictive Covenant

A provision in a deed or CC&Rs that limits the use of the property. The “one detached structure” rule is an example of a restrictive covenant.

Single Family Residential Use

The designated purpose of the properties in Blue Ridge Estates, meaning they are to be used exclusively as private homes for single families, not for commercial or multi-family dwelling purposes.

Briefing Document: Mandela v. Blue Ridge Estates Homeowner Association (No. 18F-H1817006-REL)

Executive Summary

This document synthesizes the findings of an Administrative Law Judge (ALJ) decision regarding a dispute between a homeowner, Charles Mandela (“Petitioner”), and the Blue Ridge Estates Homeowner Association (“Respondent”). The core issue was whether the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by permitting homeowners to install play structures (e.g., swing sets, treehouses) on lots that already contained another detached structure, such as a garage or shed.

The Petitioner argued that the HOA had historically enforced a strict “one detached structure” rule and that its recent allowance of play structures constituted a violation of CC&R § 3.1. In contrast, the Respondent contended that the underlying intent of the CC&Rs was to prevent secondary residential dwellings, not to prohibit recreational structures consistent with a family-oriented community. The HOA asserted it had properly amended its Architectural Committee regulations, not the CC&Rs, to clarify this distinction.

The ALJ ruled decisively in favor of the Respondent HOA. The central finding was that the intent of the restrictive covenant was to maintain the single-family residential character of the community. Because play structures cannot be easily converted into secondary residences, they are not inconsistent with this intent. The ALJ concluded that the HOA was not required to amend the CC&Rs (which requires a 75% member vote) but acted within its authority to amend its rules and regulations via a simple board vote. The Petitioner’s petition was denied.

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Core Allegation: The Petitioner alleged that the Respondent HOA violated CC&R § 3.1(a) and Architectural Committee Aligned Standard 3(D) by allowing members to build play structures, swing sets, or treehouses on properties that already had another detached structure like a garage or shed.

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

The Petitioner’s case was built on the premise of a long-standing, strict interpretation of the “one detached structure” rule.

• Core Argument: For 18 years, the Respondent interpreted CC&R § 3.1 to permit only one detached structure on any given lot, regardless of its type.

• Evidence and Testimony:

◦ Historical Enforcement: Testified that between 2002 and 2016, the HOA enforced this rule by removing nine non-compliant structures, including a gazebo, a playhouse, an observation deck, and a zipline structure.

◦ 2006 Legal Opinion: Submitted a February 7, 2006, letter from the law firm Carpenter Hazlewood, PLC, which opined on the ambiguity of CC&R § 3.1. The letter stated, “It still appears that only one structure (garage or shed) is permitted,” and supported the HOA’s ability to “enforce the ‘one detached structure’ requirement.” The letter did not specifically mention play structures.

◦ Invalid Approval Form: Presented a “Play Structure Approval Request” form he had drafted while on the board. This form incorrectly stated that the Board of Directors had voted on June 25, 2016, “to adopt changes to the CCR’s [sic], which will allow play structures.” Petitioner argued this was invalid because changing the CC&Rs requires a 75% vote of the membership, which was not obtained.

◦ Ancillary Documents: Submitted documents related to a housing discrimination claim filed by the HOA’s current president, Joseph Hancock, and a letter concerning another member. Petitioner testified these matters involved play structures, though the documents themselves did not mention CC&R § 3.1.

Respondent’s Position (Blue Ridge Estates HOA)

The Respondent’s defense centered on the purpose of the CC&Rs and its authority as a board to clarify and amend its own rules and regulations.

• Core Argument: The HOA did not violate the CC&Rs because the intent of the relevant articles is to prohibit secondary residential dwellings, not recreational structures suitable for a community intended to be a “uniquely planned recreation property.”

• Evidence and Testimony:

◦ Community Status: There are currently 16 swingsets or play structures within the 193-lot development. The HOA president, Joseph Hancock, testified he has a swingset used by his children, grandchildren, and neighbors.

◦ Legal Counsel: The HOA retained the firm of Poli & Ball, PLC, which opined that because the community is for recreation and family use, “[p]lay structures are perfectly consistent with recreation and family use.” The firm advised that the Architectural Committee’s regulations could be changed to reflect this without amending the CC&Rs. Another law firm, Carpenter Hazlewood, generally agreed with this opinion.

◦ Correction of Clerical Error: Mr. Hancock testified that the form submitted by the Petitioner contained a typographical error. The board’s intent in its June 25, 2016, vote was to amend the Architectural Committee’s regulations, not the CC&Rs.

◦ Board Meeting Minutes: The HOA submitted minutes from board meetings in December 2016 and October 2017. These minutes document the board’s discovery of the error on the website form and subsequent votes to formally clarify that the change was to the rules and regulations, not the CC&Rs, thereby ratifying its decision.

◦ Amended Approval Form: Respondent submitted the corrected “Play Structure Approval Request” form, which states, “Per the modified Rules and Regulations dated April 6, 2016, this form must be submitted to Architectural Committee for approval of any Play Structure.”

Governing Rules and Covenants

The dispute hinged on the interpretation and interplay of several key provisions in the community’s governing documents.

Document / Section

Key Provision

CC&R § 3.1

“No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage… No garage or shed shall be built prior to the issuance of a Coconino County building permit for the construction of a Single Family Residence.”

Architectural Regulation 3(D)

“One detached structure may, with Architectural Committee approval, be constructed on a property. The residence must be constructed and completed before the detached structure is built.”

CC&R § 4.2

“By a majority vote of the Board, the Association may, from time to time… adopt, amend and repeal rules and regulations to be known as the ‘Rules and Regulations.’”

CC&R § 12.2

Amending the Declaration of CC&Rs requires “the affirmative vote… or written consent of Members owning at least seventy-five percent (75%) of all Lots.”

Administrative Law Judge’s Findings and Legal Rationale

The ALJ found that the Petitioner failed to meet his burden of proof and that the Respondent acted properly within its authority.

• Intent of the Covenant: The Judge determined that CC&R Article III is fundamentally “concerned with keeping Respondent single-family residential by prohibiting structures and vehicles that could be used as a second residential dwelling on a lot.” This interpretation is supported by other rules in the article prohibiting mobile homes and clarifying that “If you can live/sleep in it, you cannot park it” in the development.

• Status of Play Structures: The decision concludes that a play structure “cannot be easily converted into a second residence.” Therefore, permitting a play structure in addition to a garage or shed is not inconsistent with the primary purpose of CC&R § 3.1.

• Board Authority vs. Member Vote: Because allowing play structures was not inconsistent with the CC&Rs, the Respondent was not required to amend the CC&Rs through a 75% member vote. Instead, the Board was empowered by CC&R § 4.2 to “amend the Architectural Committee’s regulations to provide clarification on the status of play structures” through a majority vote of the Board.

• History of Enforcement: The Judge found that the Petitioner failed to establish a uniform history of enforcement against play structures. Rather, “it appears that the status of play structures, swingsets, and tree houses has been unsettled and the subject of some contention,” partly due to the Petitioner’s own advocacy.

• Conclusion: The Respondent properly resolved the ambiguity by amending its regulations.

Final Order and Implications

• Decision: The petition was denied because the Petitioner did not establish that CC&R § 3.1 prohibits play structures under any circumstances.

• Outcome for the Community:

1. The HOA’s amendment of its rules to explicitly permit play structures was deemed valid.

2. All play structures previously approved by the Architectural Committee are allowed to remain on members’ properties.

3. The Architectural Committee is authorized to consider and approve future Play Structure Approval Requests that are submitted in accordance with the established regulations.

Case Participants

Petitioner Side

  • Charles Mandela (petitioner)
    Appeared and testified on his own behalf; previously served as president of the Architectural Committee.

Respondent Side

  • Brian C. Axt (attorney)
    Resnick & Louis, P.C.
    Represented Blue Ridge Estates Homeowner Association.
  • Joseph Hancock (board member)
    Blue Ridge Estates Homeowner Association
    Board's president; presented testimony/witness for Respondent.
  • Jason Miller (counsel)
    Carpenter Hazlewood
    Provided an email opinion supporting the Respondent's position.

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

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)

Video Overview

Audio Overview

Decision Documents

17F-H1717034-REL Decision – 619560.pdf

Uploaded 2026-04-24T11:05:20 (90.8 KB)

17F-H1717034-REL Decision – 592935.pdf

Uploaded 2026-04-24T11:05:24 (115.2 KB)

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.

Study Guide: Shields v. Will Rogers Equestrian Ranch

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 17F-H1717034-REL-RHG, involving John L. Shields and the Will Rogers Equestrian Ranch homeowners’ association. It includes a short-answer quiz to test factual recall, an answer key for verification, essay questions for deeper analysis, and a glossary of key terms as defined and used within the context of the legal decision.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the provided legal decision.

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What was the specific, single-issue claim that the Petitioner, John L. Shields, filed with the Arizona Department of Real Estate on May 3, 2017?

3. What is a “party wall” according to CC&R § 6.2(A), and what specific approval is required to alter one?

4. What was the timeline of the wall extension’s construction and Mr. Johnson’s subsequent submission for approval to the Committee?

5. On what grounds did the Respondent’s board, acting as the Architectural Control Committee, approve Mr. Johnson’s proposal?

6. What was the Petitioner’s central argument for why the Respondent should not have approved Mr. Johnson’s proposal?

7. Why was a rehearing granted after the initial hearing on September 27, 2017?

8. What contradictory evidence did the Respondent’s board consider regarding whether the Petitioner had approved the wall extension before it was built?

9. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this case?

10. What was the final recommended order from Administrative Law Judge Tammy L. Eigenheer, and what was the core legal reasoning for this decision?

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Answer Key

1. The Petitioner is John L. Shields, who owns a home at 20431 E. Bronco Drive. The Respondent is the Will Rogers Equestrian Ranch, a homeowners’ association in Queen Creek, Arizona. Mr. Shields is a member of the Respondent association.

2. The Petitioner alleged that the Respondent violated § 6.2(A) of its Covenants, Conditions, and Restrictions (CC&Rs). The violation claim was based on the Respondent approving a common block wall extension built by his neighbor, Joe Johnson, without the Petitioner’s required approval.

3. According to CC&R § 6.2(A), a “party wall” is a fence constructed upon the back of a lot. To alter or change the design, color, material, or construction of such a wall, approval is required from both the adjoining owner(s) and the Architectural Control Committee.

4. Mr. Johnson had the wall extension built on or about October 13, 2016, without prior approval. He subsequently submitted his proposal to the Committee for approval on or about November 2, 2016.

5. The board approved the proposal based on the criteria in CC&R § 7.2, which required it to consider if the alteration was aesthetically pleasing and harmonious with its surroundings. The board inspected other extensions in the development and found Mr. Johnson’s proposal to be consistent with them.

6. The Petitioner argued that the Respondent’s approval was improper because Mr. Johnson had not demonstrated that he had first obtained the Petitioner’s approval for the block wall extension, which is a stated requirement in CC&R § 6.2.

7. A rehearing was granted by Commissioner Judy Lowe on December 5, 2017. The Petitioner requested it based on claims of errors in the admission or rejection of evidence, other errors of law, and alleged misconduct by the initial Administrative Law Judge that deprived him of a fair hearing.

8. The board knew the Petitioner objected to the wall after it was built. However, the board was also aware of at least four witnesses who stated they heard the Petitioner either actually approve of the extension or fail to object while Mr. Johnson discussed building it in his presence.

9. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. In this case, the Petitioner, John L. Shields, bore the burden of proof to establish his claim by this standard.

10. The judge ordered that the petition be dismissed and that no action was required of the Respondent. The reasoning was that under CC&R § 6.2(A), the responsibility to get an adjoining neighbor’s approval lies with the property owner (Mr. Johnson), not the Respondent, and CC&R § 7.2 only required the Respondent to consider aesthetic factors, which it did.

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Essay Questions

Instructions: The following questions are designed to provoke deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer in a standard essay format.

1. Analyze the distinct responsibilities assigned to the homeowner (Mr. Johnson) and the homeowners’ association (Respondent) by CC&R § 6.2(A) and § 7.2. How did the separation of these duties form the crux of the Administrative Law Judge’s final decision?

2. Discuss the legal standard of “preponderance of the evidence” as it is defined in the decision. Explain why the evidence presented by the Petitioner, including his testimony and photograph of the wall, failed to meet this burden of proof against the Respondent.

3. Examine the role and limitations of the Architectural Control Committee as described in CC&R § 7.2. In your analysis, consider what the committee is required to evaluate, what it is explicitly not responsible for, and the provision that its approval “shall not be unreasonably withheld.”

4. Trace the procedural history of this case, from the initial petition filing to the final order after the rehearing. What does this progression reveal about the administrative hearing process and the grounds upon which a rehearing can be granted?

5. Although the petition was dismissed, the facts indicate that Mr. Johnson built the wall extension before receiving any approval and that the City of Queen Creek later found his plan to move the gate violated city codes. Argue whether the Respondent (the HOA) bears any ethical, if not legal, responsibility in a situation where its approval process is disconnected from neighbor consent and municipal law compliance.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An official, in this case Tammy L. Eigenheer, from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.

Architectural Control Committee (“the Committee”)

A body within the homeowners’ association, in this case comprised of the board members, responsible for reviewing and approving or denying proposed alterations to properties, such as fences, based on aesthetic and other specified criteria.

A.R.S. § 32-2199.01

The Arizona Revised Statute that permits an owner in a planned community to file a petition with the Department of Real Estate concerning violations of community documents.

Burden of Proof

The obligation of a party in a legal case to provide evidence that proves its claim. In this case, the Petitioner bore the burden to prove his claim by a “preponderance of the evidence.”

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set forth the rules for a planned community. This case centers on the interpretation of § 6.2(A) and § 7.2 of the Will Rogers Equestrian Ranch CC&Rs.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Respondent, Will Rogers Equestrian Ranch, is an HOA.

Party Wall

As defined in CC&R § 6.2(A), a fence constructed upon the back of any lot that is shared between adjoining properties. Alterations require approval from the adjoining owner and the Committee.

Petitioner

The party who initiates a legal action or petition. In this case, John L. Shields, a homeowner and member of the Respondent association.

Preponderance of the Evidence

The standard of proof required in this civil administrative hearing. It is 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 claimed there were errors of law and misconduct by the judge in the first proceeding that deprived him of a fair hearing.

Respondent

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

4 Surprising Lessons From a Homeowner’s Lawsuit Against His HOA

It’s a scenario many homeowners can imagine: a neighbor erects a new wall along the property line without your consent. Your first instinct is to escalate the issue to your Homeowners’ Association (HOA), assuming it’s their job to enforce the community’s rules. This common assumption—that the HOA is the ultimate authority responsible for mediating all disputes between neighbors—is powerful, but is it always correct?

A real-life administrative court case, Shields v. Will Rogers Equestrian Ranch, provides a valuable case study in the delineation of duties within a planned community, revealing that the answer can be a surprising “no.” This case offers critical insights into the true roles and responsibilities of an HOA. Here are the top four counter-intuitive takeaways from this legal decision that every homeowner should understand.

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1. Your HOA Isn’t a Referee for Neighbor-to-Neighbor Agreements

Mr. Shields sued his HOA because it approved a neighbor’s wall extension that he, the adjoining owner, had not approved. He believed this violated the community’s Covenants, Conditions, and Restrictions (CC&Rs), specifically § 6.2(A), which requires approval from the adjoining owner for such changes.

The Administrative Law Judge, however, found the HOA had no legal duty to enforce this particular rule. The responsibility to secure the neighbor’s approval fell solely on the property owner making the change, not the HOA. The judge’s finding on this point was direct and unambiguous:

CC&R § 6.2(A) required that the property owner, Mr. Johnson, obtain the adjoining property owner’s, Petitioner’s, approval before he built the block wall extension. Respondent [the HOA] had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.

This ruling clarifies that an HOA’s role is not that of a quasi-judicial body for resolving all private disputes; its enforcement powers are limited to the specific duties enumerated in its governing documents. CC&R § 6.2(A) effectively creates a private right of action between neighbors, which the HOA is not a party to. The HOA’s role is to enforce rules that obligate the homeowner to the association, not necessarily to other homeowners.

2. The Architectural Committee’s Job Is Narrower Than You Think

In its defense, the HOA’s board, acting as the Architectural Control Committee, argued that its review was based on a different rule entirely: CC&R § 7.2. The judge agreed, highlighting the Committee’s very narrow scope of responsibility.

According to the case findings, the Committee’s only legal obligation was to determine if the proposed wall was “aesthetically pleasing and consistent” with other properties in the development. Its review under § 7.2 did not require it to confirm whether the neighbor had obtained Mr. Shields’ approval as mandated by the separate rule. This legal structure isolates the two duties, and the homeowner’s error was conflating them. The HOA’s limited aesthetic review reinforces the conclusion from our first lesson: it is not responsible for policing the separate neighbor-approval requirement. An architectural green light is often purely about community harmony, not a verification of compliance with every other covenant.

3. Building First and Asking Permission Later Creates Confusion

The sequence of events in this case was disorderly, which ultimately clouded the legal issues. From the outset, the petitioner himself “vacillated on whether his issue with Respondent was that it improperly approved Mr. Johnson’s proposal… or that it failed to enforce the requirement that Mr. Johnson had to obtain Petitioner’s approval,” foreshadowing the difficulty in proving a specific violation.

The timeline further illustrates the breakdown in process:

• October 13, 2016: The neighbor, Mr. Johnson, built the wall extension before seeking any approval.

• October 16, 2016: Mr. Shields expressed his disapproval directly to the neighbor.

• November 2, 2016: The neighbor submitted his proposal to the HOA for approval—weeks after the wall was already built.

• November 2016: The HOA Board verbally approved the wall but astutely “advised him that ‘he will need to seek neighboring property owner’s approval.’”

This retroactive process, combined with a dispute clouded by conflicting testimony—four witnesses claimed they heard Mr. Shields either approve of the wall or fail to object—muddied the waters, making it impossible for the petitioner to meet his burden of proof regarding the HOA’s actions. The messiness of the facts directly contributed to the legal failure.

4. The Burden of Proof Rests Entirely on You

In a legal dispute with an HOA, the “burden of proof” falls on the petitioner. Mr. Shields had to establish his case by a “preponderance of the evidence,” which the court defines simply as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Crucially, he had to prove that the HOA specifically violated a statute or a rule within the CC&Rs. It wasn’t enough to demonstrate that his neighbor violated a rule or that the situation felt unjust. He had to prove the HOA failed to perform a duty for which it was explicitly responsible.

The judge ultimately dismissed the petition because Mr. Shields could not meet this burden. He failed to prove the HOA had a duty to deny the application based on his lack of approval. A subjective sense of unfairness is insufficient to meet the legal standard; a petitioner must prove a direct breach of a specified duty by the association.

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Conclusion: Know Your Rules, Not Just Your Rights

The overarching lesson from the Shields case is that CC&Rs are a legal contract with a precise, and sometimes non-obvious, allocation of responsibilities among the homeowner, their neighbors, and the association itself. The HOA is not an all-powerful enforcer but an organization with a defined, and sometimes surprisingly limited, set of duties. Homeowners, in turn, have their own responsibilities—including, at times, enforcing certain rights directly with their neighbors.

Before escalating your next neighborhood issue, have you read the fine print to see who is truly responsible for what?

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
  • Joe Johnson (neighbor/member)
    Lot owner who built the wall extension; Husband of Sandy Johnson
  • Sandy Johnson (neighbor/witness)
    Wife of Joe Johnson; next-door neighbor to Petitioner; testified in initial hearing
  • Dean Kabanuk (board member/witness)
    Will Rogers Equestrian Ranch Board
    Respondent’s board president; testified in initial hearing
  • Kristi Hancock (board member/witness)
    Will Rogers Equestrian Ranch Board
    Attorney; served as VP (Nov 2016-Nov 2017) and President (since Nov 2017); testified in both hearings
  • Brenda Campbell (property manager/witness)
    Will Rogers Equestrian Ranch
    Respondent’s community manager; testified in initial hearing
  • A.J. Denardo (witness)
    Lives near Petitioner; testified in initial hearing regarding Petitioner's tacit approval

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    Issued the initial Administrative Law Judge Decision (October 11, 2017)
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Issued the Administrative Law Judge Decision following rehearing (February 26, 2018)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Granted Petitioner's request for rehearing; decision transmitted to Commissioner
  • Felicia Del Sol (OAH staff)
    Office of Administrative Hearings
    Transmitted the rehearing decision

Richard Long vs. Pebble Creek Resort Community

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Case Summary

Case ID 17F-H1717037-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-09-06
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard Long Counsel —
Respondent Pebble Creek Resort Community Counsel —

Alleged Violations

A.R.S. § 41-2198.01; CC&Rs § 1(Hh), 2(P)(i); ALC Guideline SS(4)(a)

Outcome Summary

The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.

Key Issues & Findings

Refusal to approve construction of a 10’ long, 6’ high block wall for privacy

Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • CC&R § 1(Hh)
  • CC&R § 2(P)(i)
  • ALC Guideline SS(4)(a)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA, Block Wall, Privacy Wall, CC&Rs, ALC Guidelines, Party Wall
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R § 1(Hh)
  • CC&R § 2(P)(i)
  • ALC Guideline SS(4)(a)

Video Overview

Audio Overview

Decision Documents

17F-H1717037-REL Decision – 586501.pdf

Uploaded 2026-04-24T11:05:32 (117.9 KB)

17F-H1717037-REL Decision – 588547.pdf

Uploaded 2026-04-24T11:05:36 (1013.5 KB)

17F-H1717037-REL Decision – 586501.pdf

Uploaded 2026-01-23T17:20:42 (117.9 KB)

17F-H1717037-REL Decision – 588547.pdf

Uploaded 2026-01-23T17:20:45 (1013.5 KB)

Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.

The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.

The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.

Case Overview

The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.

Case Detail

Information

Case Name

Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent

Case Number

No. 17F-H1717037-REL / HO 17-17/037

Office of Administrative Hearings (Phoenix, Arizona)

Petitioner

Richard Long (Appeared on his own behalf)

Respondent

Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)

Administrative Law Judge

Diane Mihalsky

Real Estate Commissioner

Judy Lowe

Hearing Date

August 30, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 14, 2017

Core Dispute and Party Positions

Petitioner’s Proposal and Argument (Richard Long)

• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.

• Proposed Location: “A foot or so inside his side of the property line.”

• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.

• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”

• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.

Respondent’s Position and Actions (Pebble Creek HOA)

• Initial Action: The ALC denied the Petitioner’s request.

• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”

• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:

1. The wall must be constructed directly on the property line.

2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).

3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.

4. The signed agreement would be kept in the ALC files for both properties.

Neighbor’s Position (The Rohlmans)

• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.

• In an email submitted as evidence, they outlined their reasons for refusal:

◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.

◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.

◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”

◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”

◦ They concluded that “All of these requirements are onerous.”

Analysis of Governing Documents

The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.

• CC&R § 1(Hh) – Definition of “Party Walls”

◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”

◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.

• CC&R § 2(P)(i) – Use of Party Walls

◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”

◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.

• ALC Guideline SS(4)(a) – Parallel Walls

◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”

◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.

• ALC Guideline JJ – “Privacy Panel Wall”

◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:

▪ Free-standing alumawood.

▪ Six feet in height and no more than sixteen feet in length.

▪ Located “at least three (3) feet from the property line.”

◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.

Administrative Law Judge’s Decision and Rationale

The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.

• Key Findings of Law:

1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.

2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.

3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).

• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”

• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.

Final Order and Subsequent Actions

• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.

• Effect of Order: The denial of the petition became final, binding, and effective immediately.

• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:

1. Irregularity in proceedings or abuse of discretion by the ALJ.

2. Misconduct by the Department, ALJ, or prevailing party.

3. Accident or surprise that could not have been prevented.

4. Newly discovered material evidence.

5. Excessive or insufficient penalties.

6. Error in the admission or rejection of evidence.

7. The decision is arbitrary, capricious, or an abuse of discretion.

8. The findings of fact are not supported by the evidence or are contrary to law.

• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.

Study Guide: Long v. Pebble Creek Resort Community (Case No. 17F-H1717037-REL)

This study guide provides a review of the administrative hearing decision concerning a dispute between homeowner Richard Long and the Pebble Creek Resort Community homeowners’ association. It covers the facts of the case, the arguments presented, the relevant community rules, and the final legal outcome.

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Short-Answer Quiz

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

1. What was the specific structure that the Petitioner, Richard Long, proposed to build, and what was its intended purpose?

2. On what grounds did the Respondent, Pebble Creek Resort Community, justify its restrictions against the type of wall the Petitioner proposed?

3. What conditional variance did the Respondent offer to the Petitioner on May 1, 2017?

4. What were the primary concerns expressed by the Petitioner’s neighbors, the Rohlmans, which led them to decline the proposed wall agreement?

5. According to ALC Guideline JJ, what alternative structure could the Petitioner have built for privacy, and what were its key requirements?

6. How do the CC&Rs define a “Party Wall,” and what right does CC&R § 2(P)(i) grant to contiguous property owners regarding such a wall?

7. What rule from the ALC Guidelines prohibits the construction of two parallel walls side-by-side, and why is this rule in place?

8. What is the legal standard of “preponderance of the evidence” as defined in the hearing decision?

9. Who held the burden of proof to establish that the homeowners’ association violated its governing documents?

10. What was the final, binding outcome of the case after the Administrative Law Judge’s decision was reviewed?

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Answer Key

1. The Petitioner proposed to build a 10-foot long, 6-foot high block wall for privacy between his patio and his neighbor’s patio. The wall was to be located a foot or so inside his side of the property line, so his neighbors could not attach to it.

2. The Respondent explained that walls built near, but not on, the property line can lead to problems. This can result in two parallel walls being built, creating an unmaintainable space between them that collects refuse, leaves, insects, nests, and rodents.

3. The Respondent approved a variance on the condition that the wall be built on the property line. Both the Petitioner and his neighbors (the Rohlmans) had to agree in writing that current or future owners could extend the wall, with this agreement being disclosed upon sale of either house.

4. The Rohlmans declined because they believed a wall on the property line would negatively affect their property’s value. They were also concerned about the legal expense and perpetual nature of an easement, and the possibility that future owners could lengthen the wall without consent.

5. ALC Guideline JJ permits a “privacy panel wall,” which is a free-standing alumawood wall. This wall must be 6 feet high, no longer than 16 feet, and located at least 3 feet from the property line. The Petitioner rejected this option, feeling it was “unsightly and flimsy.”

6. CC&R § 1(Hh) defines a “Party Wall” as a wall constructed on or immediately adjacent to the common boundary of lots. CC&R § 2(P)(i) states that each owner of a contiguous property has the right to use the Party Wall, provided it does not interfere with the other owner’s use.

7. ALC Guideline SS(4)(a) states that an existing party wall along a joint property line “precludes any adjacent parallel party wall.” This rule is in place to prevent the negative situation described by the Respondent where a difficult-to-maintain space is created between two walls.

8. A “preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is also described as “the greater weight of the evidence” that is sufficient to incline a fair mind to one side of an issue over the other.

9. The Petitioner, Richard Long, bore the burden of proof. He had to establish by a preponderance of the evidence that the Respondent violated the CC&Rs and ALC Guidelines.

10. The Administrative Law Judge (ALJ) denied the Petitioner’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate, becoming a Final Order. The Order is binding on the parties unless a rehearing is granted.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-style response. Use the case documents to formulate a comprehensive answer supported by specific facts and citations to the community’s governing documents.

1. Analyze the conflict between the Petitioner’s desire for a specific type of privacy structure and the Respondent’s interpretation of the community’s CC&Rs and ALC Guidelines. How did the governing documents prioritize community standards and potential future problems over an individual homeowner’s preference?

2. Discuss the role and reasoning of the Petitioner’s neighbors, the Rohlmans. Evaluate their concerns regarding property value, easements, and future modifications as presented in their email, and explain how their refusal to sign the agreement was a critical factor in the dispute.

3. Explain the legal reasoning used by Administrative Law Judge Diane Mihalsky to reach her decision. Detail which specific sections of the CC&Rs and ALC Guidelines were most influential and how she applied them to unequivocally deny the Petitioner’s request.

4. Compare and contrast the two types of structures discussed for ensuring privacy: the block wall proposed by the Petitioner and the “privacy panel wall” permitted by ALC Guideline JJ. What are the key differences in their material, specifications, placement, and the implications of those differences within the community’s rules?

5. Trace the procedural path of this dispute, from the initial petition to the Final Order. Describe the distinct roles and authority of the Arizona Department of Real Estate, the Architectural Landscape Committee (ALC), the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes decisions on disputes. In this case, the ALJ was Diane Mihalsky.

Architectural Landscape Committee (ALC)

The committee within the homeowners’ association responsible for reviewing and approving or denying proposed changes to properties, such as walls and fences, based on the community’s guidelines.

Burden of Proof

The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated the community documents.

Covenants, Conditions and Restrictions. These are the governing legal documents that set out the guidelines for a planned community or homeowners’ association.

The Department

The Arizona Department of Real Estate, which is authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.

Homeowners’ Association (HOA)

The organization that creates and enforces rules for the properties within its jurisdiction. In this case, the Pebble Creek Resort Community homeowners’ association was the Respondent.

Party Wall

As defined in CC&R § 1(Hh), “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.” CC&R § 2(P)(i) grants each owner the right to use the Party Wall.

Petitioner

The party who files a petition initiating a legal action. In this case, the homeowner Richard Long.

Preponderance of the Evidence

The standard of proof in this civil case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and “[t]he greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this case, the Pebble Creek Resort Community homeowners’ association.

Why Your HOA Can Control a Wall Built Entirely on Your Property

Introduction: The Privacy Paradox

Imagine you want a bit more privacy from your next-door neighbor. The solution seems simple: build a wall. To avoid any disputes, you decide to build it entirely on your land, a good foot inside your property line. It’s your property, your wall, your right. But what if your Homeowners’ Association (HOA) tells you that you can’t? This is not a hypothetical scenario; it’s precisely what happened to homeowner Richard Long when he tried to build a 10’ long, 6’ high block wall.

Mr. Long proposed building the wall just one foot inside his property line, believing this would make it a private structure, free from the shared-property rules that often complicate neighborly relations. The HOA denied his request, sparking a legal dispute. The outcome of this case provides surprising and counter-intuitive lessons that every homeowner in a planned community should understand about property rights, community rules, and the hidden logic that governs them.

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1. The Hidden Logic: Preventing the “Rodent Run”

At first glance, the HOA’s rule might seem like arbitrary overreach. Why should they care if a wall is on the property line or one foot away from it? The answer reveals a practical, long-term logic designed to prevent a specific, unpleasant problem: two parallel walls built side-by-side.

The HOA’s governing documents were written to avoid a scenario where a small, unmaintainable gap is created between two separate walls on adjacent properties. If Mr. Long built his wall a foot inside his line, and his neighbor later decided to do the same, a narrow dead space would be created between the homes. In its official written answer, the HOA vividly described the issue this creates:

This is not a good situation in that there often isn’t room between the walls to properly maintain either wall, and the area in between the two walls becomes filled with refuse, leaves, insects, nests and rodents.

This reveals a core principle of planned community management: rules are often designed not to restrict current owners, but to mitigate future risks and liabilities for the entire community. This preventative governance aims to protect the community from future blight, sanitation issues, and pest infestations.

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2. The “Immediately Adjacent” Rule: Your Property Isn’t an Island

The homeowner’s central argument was that by building the wall a foot inside his property, it was his private wall, not a shared “party wall” subject to joint rules. It was a clever attempt to circumvent the regulations, but it failed because of the precise wording in the community’s Covenants, Conditions, and Restrictions (CC&Rs).

Here, the dispute hinged on two seemingly innocuous words. The community’s CC&Rs define a “Party Wall” as a wall constructed “on or immediately adjacent to the common boundary.” The Administrative Law Judge interpreted a wall built only a foot away as falling under the definition of “immediately adjacent.” This single phrase effectively negated the homeowner’s entire strategy.

The judge’s determination that the wall qualified as “immediately adjacent” was critical. By legally defining it as a Party Wall, another rule from the CC&Rs automatically kicked in: the adjoining neighbor’s explicit right to use it. This completely undermined the homeowner’s central goal of creating a purely private structure.

As if that weren’t definitive enough, another, even more explicit rule served as the final nail in the coffin. ALC Guideline SS(4)(a) states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.” This rule directly forbids the exact “rodent run” scenario, showing that the governing documents had multiple, overlapping prohibitions against his plan.

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3. The Neighbor’s Veto: It’s a Three-Party Problem

In an attempt to find a middle ground, the HOA offered a potential compromise. They would approve the wall, but only if it were built directly on the property line and if both Mr. Long and his neighbors, the Rohlmans, signed a formal “Party Wall/Fence Agreement.” This solution, however, revealed another layer of complexity. The neighbors refused to sign.

The Rohlmans explained their reasoning in an email, highlighting concerns that went beyond simple aesthetics. They worried about the financial and legal implications of a shared wall on the property line.

[We] declined to have a wall built on the property line between our homes because it affects the current and future value of our property – and yours. Furthermore, each of us would have to grant the other an easement in perpetuity, which is a legal document… Upon the sale of our home, we would have to inform the purchaser of the easement, which lowers the value of the property.

This demonstrates a common blind spot for homeowners: disputes are rarely bilateral. The rights and financial interests of adjacent property owners create a complex, multi-party dynamic. More often than not, an HOA dispute is a three-party negotiation, and a neighbor’s consent—or lack thereof—can be the deciding factor.

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Conclusion: The Rules You Don’t Know Can Hurt You

The final outcome was decisive. The Administrative Law Judge upheld the HOA’s decision, and the homeowner’s petition was denied. The judge concluded that the community’s governing documents “unequivocally prohibit” the proposed wall. However, this was not a total denial of privacy. Mr. Long did have an approved option: a free-standing “alumawood” privacy panel, provided it was located three feet from the property line. He rejected this alternative because he felt it was “unsightly and flimsy.”

This case serves as a powerful reminder that an HOA’s governing documents are not mere suggestions; they are legally binding contracts. The conflict was ultimately not between a homeowner’s right to privacy and the HOA, but between the homeowner’s specific aesthetic preference and the community’s established architectural standards. What you can do on your own land is deeply intertwined with the collective rules you agreed to when you purchased your home.

Before your next home improvement project, does your plan align not just with your vision, but also with the shared vision encoded in your community’s rules?

Case Participants

Petitioner Side

  • Richard Long (petitioner)
    Appeared on his own behalf
  • Petitioner's wife (interested party)
    Required, along with Petitioner, to agree in writing to the wall conditions for variance approval (Unit 39 Lot 12)

Respondent Side

  • Jack Sarsam (executive/witness)
    Robson Communities
    Senior Vice President for Robson Communities, overseeing Respondent's operations; testified for Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    Administrative Law Judge who issued the decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner who adopted the ALJ decision in the Final Order
  • Dan Gardner (HOA Coordinator)
    Contact for rehearing requests; listed as HOA Coordinator

Other Participants

  • The Rohlmans (neighbor/interested party)
    Adjacent neighbors (Unit 39 lot 11) whose refusal to sign the party wall agreement was central to the dispute

Jason West vs. Desert Sage Two Homeowners Association

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Case Summary

Case ID 17F-H1716031-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-28
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the homeowner’s petition alleging the HOA failed to fill board vacancies (Bylaw § 3.6 violation), finding that the HOA had made reasonable efforts, but vacancies could not be filled because no eligible members were willing to serve, partly due to the Petitioner's actions.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jason West Counsel —
Respondent Desert Sage Two Homeowners Association Counsel Stewart F. Salwin, Esq.

Alleged Violations

Bylaw § 3.6

Outcome Summary

The Administrative Law Judge denied the homeowner’s petition alleging the HOA failed to fill board vacancies (Bylaw § 3.6 violation), finding that the HOA had made reasonable efforts, but vacancies could not be filled because no eligible members were willing to serve, partly due to the Petitioner's actions.

Why this result: Respondent established that the Board performed all reasonable actions to fill vacancies, but no eligible members were willing to serve, in part due to Petitioner's obstructionist tactics, rendering enforcement of the Bylaw impossible as it would lead to an absurdity.

Key Issues & Findings

Refusing to fill vacancies on Respondent’s Board of Directors

Petitioner alleged Respondent violated Bylaw § 3.6 by refusing to fill vacancies on the Board of Directors. The Administrative Law Judge determined that the Board had done all it could to fill vacancies, but no eligible members were willing to serve, and Bylaw § 3.6 does not empower the Board to conscript unwilling members.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Mail Boxes v. Industrial Comm’n of Arizona, 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Analytics Highlights

Topics: HOA Board Vacancies, Bylaw 3.6, Obstructionist Tactics, Refusal to Serve
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY
  • Mail Boxes v. Industrial Comm’n of Arizona
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Video Overview

Audio Overview

Decision Documents

17F-H1716031-REL Decision – 572314.pdf

Uploaded 2026-04-24T11:04:00 (137.9 KB)

17F-H1716031-REL Decision – 576049.pdf

Uploaded 2026-04-24T11:04:04 (1160.4 KB)

17F-H1716031-REL Decision – 572314.pdf

Uploaded 2026-01-23T17:19:29 (137.9 KB)

17F-H1716031-REL Decision – 576049.pdf

Uploaded 2026-01-23T17:19:32 (1160.4 KB)

Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 17F-H1716031-REL)

Executive Summary

This briefing document analyzes the administrative hearing and final order concerning a petition filed by homeowner Jason West (“Petitioner”) against the Desert Sage Two Homeowners Association (“Respondent”). The Petitioner alleged that the HOA’s Board of Directors violated its own Bylaw § 3.6 by failing to fill vacant board positions.

The Administrative Law Judge (ALJ) denied the petition, a decision that was subsequently adopted as a Final Order by the Commissioner of the Arizona Department of Real Estate. The central finding was that the Respondent had made repeated and reasonable efforts to fill the vacancies but was unsuccessful due to a lack of willing and eligible candidates. The ALJ concluded that the governing bylaw mandates the appointment of willing members but does not grant the power to conscript individuals to serve against their will. Furthermore, the decision determined that the shortage of volunteers was attributable, in part, to the Petitioner’s own “obstructionist tactics,” which created a hostile and dysfunctional environment, leading to a series of board member resignations and deterring potential candidates.

Case Overview

• Case Number: 17F-H1716031-REL

• Petitioner: Jason West, a homeowner and member of the Desert Sage Two Homeowners Association.

• Respondent: Desert Sage Two Homeowners Association, representing a small community of approximately 40 homes.

• Core Allegation: On April 10, 2017, the Petitioner filed a single-issue petition alleging the Respondent violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

• Hearing Date: June 21, 2017, before Administrative Law Judge Diane Mihalsky.

• Final Disposition: The Petitioner’s petition was denied in a decision dated June 28, 2017. This decision was adopted as a Final Order by the Arizona Department of Real Estate on July 12, 2017, making it binding on the parties.

Governing Bylaw in Dispute

The central issue revolved around the interpretation of Section 3.6 of the HOA’s Bylaws, which states:

Vacancies. Vacancies on the Board caused by any reason other than the removal of a director in accordance with the provisions of Section 3.3 of these Bylaws shall be filled by a majority vote of the remaining directors at the first regular or special meeting of the Board held after the occurrence of such vacancy, even though the directors present at such meeting may constitute less than a quorum. Each person so elected shall serve the unexpired portion of the prior director’s term.

Key Parties and Witnesses

Role / Affiliation

Key Testimony / Actions

Jason West

Petitioner, Homeowner, Former Board President

Filed the petition alleging bylaw violation. Previously filed recall petitions against other board members, resigned from the board himself, and proposed a bylaw amendment that disqualified newly elected members.

Eugenia (“Gina”) Murray

Respondent’s Board President

Testified that the board made repeated efforts to find volunteers, but no one was willing to serve, citing the Petitioner’s behavior as a major cause for resignations and lack of interest.

Edward (“Eddie”) Padilla

Community Manager, National Property Service (NPS)

Testified about sending multiple email requests for board candidates on behalf of the board, which yielded no interested parties other than those who would later be disqualified.

Christina Van Soest

Former Board Member

Resigned on Feb. 8, 2017, stating, “I have found the direction of some of the board does not appear to be in the best interest of the community as a whole.” Testified she was uncomfortable with the Petitioner.

Elizabeth Mayhew

Former Board Member

Resigned on Apr. 4, 2017, citing stress directly related to the Petitioner: “I have enough stress daily with my job and cannot handle this or him. It is making me physically ill and he is not worth that.”

Myron (“Ray”) Elmer

Former Board Member

Resigned on Apr. 5, 2017, with the stated reason: “[d]ue to continued problems Jason etc.”

Korey Hjelmeir & Debra Epstein

Former Board Members

Testified for the Petitioner’s rebuttal. Both had previously resigned in June 2016 in response to the Petitioner’s recall petitions and were later disqualified from serving by a bylaw amendment he proposed.

Chronology of Board Destabilization and Resignations

The hearing evidence established a pattern of significant board turnover and dysfunction between June 2016 and June 2017.

• June 23, 2016: Board members Adrian Justiniano, Debra Epstein, and Korey Hjelmeir resigned after the Petitioner filed recall petitions against them.

• August 3, 2016: The Petitioner, June Thompson, and Christina Van Soest were elected to the Board. The Petitioner served as president.

• August 18, 2016: The Board expanded from 3 to 5 members, appointing Gina Murray and Ray Elmer.

• August 29, 2016: June Thompson resigned.

• February 8, 2017: Christina Van Soest resigned, citing the board’s direction and her discomfort with the Petitioner’s “research into members’ backgrounds and history, and the way he was making Board decisions.”

• February 18, 2017: The Petitioner resigned from the Board because he had “more important things to worry about than the management of this dysfunctional community.”

• April 4, 2017: Elizabeth Mayhew resigned, stating she could not handle the stress caused by the Petitioner and his “verbal assaults, constant lashing out, and personal attacks.”

• April 5, 2017: Ray Elmer resigned, attributing his departure to “continued problems Jason etc.” This left Gina Murray as the sole remaining board member.

Respondent’s Efforts to Fill Vacancies

The Respondent provided evidence of multiple, documented attempts to recruit new board members.

• February 23, 2017: Following the resignations of Ms. Van Soest and the Petitioner, Community Manager Eddie Padilla sent an email requesting “motivated and dedicated individuals” to serve on the Board. No one responded.

• March 31, 2017: At an open Board Meeting with “Board appointments” on the agenda, Gina Murray asked for volunteers and nominations from the floor. No one responded.

• April 4 & 18, 2017: Mr. Padilla sent two further emails requesting members interested in serving on the board to submit biographies for an upcoming annual meeting. The only individuals to respond and submit biographies were Mr. Justiniano and Ms. Hjelmeir.

• May 15, 2017: At the annual meeting, Ms. Murray again accepted nominations from the floor. Debra Epstein was nominated.

• June 5, 2017: After the newly elected board was disqualified, Mr. Padilla sent another email asking for volunteers.

Petitioner’s Actions and Their Consequences

The Administrative Law Judge’s decision identified the Petitioner’s own actions as a primary cause for the board’s inability to fill vacancies.

• Instigation of Resignations: The Petitioner’s recall petitions in June 2016 and behavior cited in the 2017 resignation letters from Van Soest, Mayhew, and Elmer directly contributed to the board vacancies.

• Contradictory Claims: The Petitioner testified that four individuals (Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti) were interested in serving. However, the sign-in sheet for the March 31, 2017 meeting, where appointments were to be made, showed none of these individuals were present.

• Disqualifying Bylaw Amendment: The Petitioner proposed a new bylaw, § 3.12, which was passed at the May 15, 2017 meeting. It stated:

• Attempted Removal of Remaining Director: On June 12, 2017, the Petitioner submitted a petition to remove Gina Murray, the last remaining original board member, which would have left the board entirely vacant.

Administrative Law Judge’s Findings and Decision

The ALJ’s conclusions of law were decisive in denying the petition.

1. Burden of Proof: The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent had violated its bylaws.

2. Interpretation of Bylaw § 3.6: The Judge ruled that while the bylaw requires the Board to appoint members to fill vacancies, “it does not empower the Board to conscript members who are not willing to serve on the Board.”

3. Principle of Absurdity: Citing legal precedent, the decision stated that bylaws must be construed to avoid an absurd result. Forcing an HOA to operate without a board because no eligible members are willing to serve, especially when the situation is exacerbated by the Petitioner, would be such an absurdity.

4. Respondent’s Due Diligence: The Judge found that “Respondent established that the Board has done all it could to fill vacancies.”

5. Petitioner’s Culpability: The final conclusion explicitly states that “at this time, no eligible members are willing to serve, in part due to Petitioner’s obstructionist tactics, including Petitioner and his claimed supporters.”

Based on these findings, the ALJ ordered that the Petitioner’s petition be denied. The order became final and binding upon adoption by the Arizona Department of Real Estate on July 12, 2017.

Study Guide: West v. Desert Sage Two Homeowners Association

This study guide provides a review of the administrative hearing case No. 17F-H1716031-REL, Jason West v. Desert Sage Two Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

Short-Answer Quiz

Answer the following questions in 2-3 sentences each, based on the information in the case documents.

1. What was the specific allegation made by the Petitioner, Jason West, in his April 10, 2017 petition?

2. According to the text of Bylaw § 3.6, how are vacancies on the Board of Directors supposed to be filled?

3. Who was the sole remaining member of the Board of Directors at the time of the mass resignations in April 2017, and what was her stated reason for not resigning?

4. Describe the circumstances that led to the resignations of board members Christina Van Soest and Jason West in February 2017.

5. What was the immediate and paradoxical outcome of the May 15, 2017 annual meeting election?

6. Explain the purpose and effect of the proposed Bylaw § 3.12, which was sponsored by the Petitioner.

7. What efforts did the Respondent’s management company, National Property Service (NPS), make to recruit new board members?

8. On what grounds did Administrative Law Judge Diane Mihalsky deny the Petitioner’s petition?

9. According to the Petitioner’s testimony, why were certain individuals he named hesitant to volunteer for the Board?

10. What action did the Commissioner of the Arizona Department of Real Estate take regarding the Administrative Law Judge’s decision?

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Answer Key

1. Jason West’s single-issue petition alleged that the Desert Sage Two Homeowners Association (the Respondent) had violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

2. Bylaw § 3.6 states that vacancies on the Board (for reasons other than removal) shall be filled by a majority vote of the remaining directors at the next meeting. The person elected serves the unexpired portion of the prior director’s term.

3. Eugenia (“Gina”) Murray was the sole remaining board member. She stated she had no intention of resigning because it was important for someone to serve the community’s interests, such as negotiating the insurance contract and handling other community affairs.

4. Christina Van Soest resigned on February 8, 2017, stating the board’s direction was not in the community’s best interest and she was uncomfortable with the Petitioner’s methods. On February 18, 2017, Jason West resigned, citing his belief that he had “more important things to worry about than the management of this dysfunctional community.”

5. At the May 15, 2017 meeting, Eugenia Murray, Debra Epstein, Adrian Justiniano, and Korey Hjelmeir were elected to the Board. However, a bylaw amendment proposed by the Petitioner also passed at the same meeting, which made Epstein, Justiniano, and Hjelmeir ineligible to serve because they had resigned within the previous year.

6. The proposed Bylaw § 3.12 was designed to ban any director who resigns or is removed from serving on the board again for one year. Its passage at the May 15, 2017 meeting had the immediate effect of disqualifying three of the four newly elected board members.

7. NPS, through Community Manager Edward Padilla, sent out multiple emails requesting that interested individuals submit biographies to be considered for board positions. These requests were sent on February 23, April 4, April 18, and June 5, 2017.

8. Judge Mihalsky denied the petition because the Respondent had established that the Board did all it could to fill the vacancies. The judge concluded that the Bylaws cannot be construed to empower the Board to conscript unwilling members and that the lack of volunteers was due in part to the Petitioner’s own “obstructionist tactics.”

9. The Petitioner testified that Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti were interested but had two conditions. They were concerned about serving with certain other members (Murray, Hjelmeir, Justiniano, or the Epsteins) and wanted assurance that the directors’ insurance policy would be renewed, which was questionable due to petitions filed by West himself.

10. On July 12, 2017, the Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the Administrative Law Judge’s decision. This order made the denial of the Petitioner’s petition binding on the parties.

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Suggested Essay Questions

The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the role of Jason West in the series of board resignations and the difficulty in finding new board members, citing specific evidence presented by the Respondent and testimony from former board members.

2. Discuss the Administrative Law Judge’s interpretation of Bylaw § 3.6. How does the judge balance the literal requirement to fill vacancies with the practical realities faced by the Board, and what legal principles support this interpretation?

3. Trace the timeline of board membership from March 2016 to May 2017. What patterns emerge regarding appointments, resignations, and elections, and how do these events illustrate the internal conflict within the Desert Sage Two community?

4. Evaluate the effectiveness of the Bylaw amendment (§ 3.12) proposed by Jason West. Did it achieve its likely intended purpose, and what were its immediate, perhaps unintended, consequences for the governance of the homeowners’ association?

5. Based on the evidence presented, construct an argument for why the Respondent, Desert Sage Two Homeowners Association, successfully defended itself against the Petitioner’s claim. Your answer should focus on the actions taken by the Board and its management company and the legal conclusions drawn by the judge.

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Glossary of Key Terms

Term / Entity

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over an administrative hearing at the Office of Administrative Hearings and issues a decision.

Arizona Department of Real Estate (“the Department”)

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

Bylaw § 3.12 (Proposed)

An amendment proposed by the Petitioner that would ban any director who resigns or is removed from the board from serving again for a period of one year. This amendment was passed at the May 15, 2017 annual meeting.

Bylaw § 3.6

The section of the Respondent’s bylaws that was the central issue of the petition. It requires the remaining directors to fill board vacancies by a majority vote at the next regular or special meeting.

Desert Sage Two Homeowners Association

The Respondent in the case; a small homeowners’ association for a development of approximately 40 condominium homes.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which formally adopts the ALJ’s decision. This order makes the ruling effective and outlines the process for requesting a rehearing.

Jason West

The Petitioner in the case. He is a homeowner and member of the Respondent association who filed a petition alleging the Board violated Bylaw § 3.6.

National Property Service (NPS)

The management company employed by the Respondent, represented in the hearing by Community Manager Edward (“Eddie”) Padilla.

Office of Administrative Hearings

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

Petitioner

The party who files a petition initiating a legal action. In this case, Jason West.

Preponderance of the evidence

The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and has the greater weight, inclining an impartial mind to one side of the issue rather than the other.

Respondent

The party against whom a petition is filed. In this case, the Desert Sage Two Homeowners Association.

Study Guide: West v. Desert Sage Two Homeowners Association

This study guide provides a review of the administrative hearing case No. 17F-H1716031-REL, Jason West v. Desert Sage Two Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

Short-Answer Quiz

Answer the following questions in 2-3 sentences each, based on the information in the case documents.

1. What was the specific allegation made by the Petitioner, Jason West, in his April 10, 2017 petition?

2. According to the text of Bylaw § 3.6, how are vacancies on the Board of Directors supposed to be filled?

3. Who was the sole remaining member of the Board of Directors at the time of the mass resignations in April 2017, and what was her stated reason for not resigning?

4. Describe the circumstances that led to the resignations of board members Christina Van Soest and Jason West in February 2017.

5. What was the immediate and paradoxical outcome of the May 15, 2017 annual meeting election?

6. Explain the purpose and effect of the proposed Bylaw § 3.12, which was sponsored by the Petitioner.

7. What efforts did the Respondent’s management company, National Property Service (NPS), make to recruit new board members?

8. On what grounds did Administrative Law Judge Diane Mihalsky deny the Petitioner’s petition?

9. According to the Petitioner’s testimony, why were certain individuals he named hesitant to volunteer for the Board?

10. What action did the Commissioner of the Arizona Department of Real Estate take regarding the Administrative Law Judge’s decision?

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Answer Key

1. Jason West’s single-issue petition alleged that the Desert Sage Two Homeowners Association (the Respondent) had violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

2. Bylaw § 3.6 states that vacancies on the Board (for reasons other than removal) shall be filled by a majority vote of the remaining directors at the next meeting. The person elected serves the unexpired portion of the prior director’s term.

3. Eugenia (“Gina”) Murray was the sole remaining board member. She stated she had no intention of resigning because it was important for someone to serve the community’s interests, such as negotiating the insurance contract and handling other community affairs.

4. Christina Van Soest resigned on February 8, 2017, stating the board’s direction was not in the community’s best interest and she was uncomfortable with the Petitioner’s methods. On February 18, 2017, Jason West resigned, citing his belief that he had “more important things to worry about than the management of this dysfunctional community.”

5. At the May 15, 2017 meeting, Eugenia Murray, Debra Epstein, Adrian Justiniano, and Korey Hjelmeir were elected to the Board. However, a bylaw amendment proposed by the Petitioner also passed at the same meeting, which made Epstein, Justiniano, and Hjelmeir ineligible to serve because they had resigned within the previous year.

6. The proposed Bylaw § 3.12 was designed to ban any director who resigns or is removed from serving on the board again for one year. Its passage at the May 15, 2017 meeting had the immediate effect of disqualifying three of the four newly elected board members.

7. NPS, through Community Manager Edward Padilla, sent out multiple emails requesting that interested individuals submit biographies to be considered for board positions. These requests were sent on February 23, April 4, April 18, and June 5, 2017.

8. Judge Mihalsky denied the petition because the Respondent had established that the Board did all it could to fill the vacancies. The judge concluded that the Bylaws cannot be construed to empower the Board to conscript unwilling members and that the lack of volunteers was due in part to the Petitioner’s own “obstructionist tactics.”

9. The Petitioner testified that Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti were interested but had two conditions. They were concerned about serving with certain other members (Murray, Hjelmeir, Justiniano, or the Epsteins) and wanted assurance that the directors’ insurance policy would be renewed, which was questionable due to petitions filed by West himself.

10. On July 12, 2017, the Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the Administrative Law Judge’s decision. This order made the denial of the Petitioner’s petition binding on the parties.

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Suggested Essay Questions

The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the role of Jason West in the series of board resignations and the difficulty in finding new board members, citing specific evidence presented by the Respondent and testimony from former board members.

2. Discuss the Administrative Law Judge’s interpretation of Bylaw § 3.6. How does the judge balance the literal requirement to fill vacancies with the practical realities faced by the Board, and what legal principles support this interpretation?

3. Trace the timeline of board membership from March 2016 to May 2017. What patterns emerge regarding appointments, resignations, and elections, and how do these events illustrate the internal conflict within the Desert Sage Two community?

4. Evaluate the effectiveness of the Bylaw amendment (§ 3.12) proposed by Jason West. Did it achieve its likely intended purpose, and what were its immediate, perhaps unintended, consequences for the governance of the homeowners’ association?

5. Based on the evidence presented, construct an argument for why the Respondent, Desert Sage Two Homeowners Association, successfully defended itself against the Petitioner’s claim. Your answer should focus on the actions taken by the Board and its management company and the legal conclusions drawn by the judge.

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Glossary of Key Terms

Term / Entity

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over an administrative hearing at the Office of Administrative Hearings and issues a decision.

Arizona Department of Real Estate (“the Department”)

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

Bylaw § 3.12 (Proposed)

An amendment proposed by the Petitioner that would ban any director who resigns or is removed from the board from serving again for a period of one year. This amendment was passed at the May 15, 2017 annual meeting.

Bylaw § 3.6

The section of the Respondent’s bylaws that was the central issue of the petition. It requires the remaining directors to fill board vacancies by a majority vote at the next regular or special meeting.

Desert Sage Two Homeowners Association

The Respondent in the case; a small homeowners’ association for a development of approximately 40 condominium homes.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which formally adopts the ALJ’s decision. This order makes the ruling effective and outlines the process for requesting a rehearing.

Jason West

The Petitioner in the case. He is a homeowner and member of the Respondent association who filed a petition alleging the Board violated Bylaw § 3.6.

National Property Service (NPS)

The management company employed by the Respondent, represented in the hearing by Community Manager Edward (“Eddie”) Padilla.

Office of Administrative Hearings

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

Petitioner

The party who files a petition initiating a legal action. In this case, Jason West.

Preponderance of the evidence

The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and has the greater weight, inclining an impartial mind to one side of the issue rather than the other.

Respondent

The party against whom a petition is filed. In this case, the Desert Sage Two Homeowners Association.

Case Participants

Petitioner Side

  • Jason West (petitioner)
    Appeared on his own behalf; testified on his own behalf
  • Linda Siedler (witness, member)
    Allegedly interested in serving on the Board; signed petition to remove Ms. Murray
  • Teresa Price (witness, member)
    Allegedly interested in serving on the Board; signed petition to remove Ms. Murray
  • Bret Morse (witness, member)
    Allegedly interested in serving on the Board; submitted absentee ballot; signed petition to remove Ms. Murray
  • Bryan Brunatti (witness, member)
    Allegedly interested in serving on the Board; attended meeting and counted ballots; signed petition to remove Ms. Murray

Respondent Side

  • Stewart F. Salwin (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Represented the Respondent
  • Eugenia Murray (board president, witness)
    Only current Board member at the time of hearing; testified for Respondent
  • Edward Padilla (property manager, witness)
    National Property Service (NPC)
    Community Manager; testified for Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    ADRE Commissioner who adopted the ALJ Decision

Other Participants

  • Korey Hjelmeir (witness, former board member)
    Testified for Petitioner as former Board member; resigned and later sought re-election
  • Debra Epstein (witness, former board member)
    Testified for Petitioner as former Board member; resigned and later sought re-election; appeared via Skype at a meeting
  • Adrian Justiniano (former board member)
    Resigned and later sought re-election
  • June Thompson (former board member)
    Elected and resigned in 2016
  • Christina Van Soest (former board member)
    Elected and resigned in 2017
  • Myron Elmer (former board member)
    Appointed and resigned in 2017
  • Elizabeth Mayhew (former board member)
    Appointed and resigned in 2017
  • David Epstein (member)
    Appeared via Skype at a meeting; expressed interest in serving on Board
  • Abby Hansen (HOA coordinator)
    Individual to whom requests for rehearing should be addressed

Tom Pyron vs Cliffs at North Mountain Condominium Association, Inc.

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Case Summary

Case ID 17F-H1717026-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-19
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Pyron Counsel —
Respondent Cliffs at North Mountain Condominium Association, Inc. Counsel B. Austin Baillio

Alleged Violations

Bylaws, Article III, §§ 3.02 and 3.06, and Article IV, § 4.06

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA correctly identified only one Board position (the one-year term) was up for election in 2017 based on the Bylaws' staggered term provisions.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated its Bylaws.

Key Issues & Findings

Dispute over the number of Board of Director positions available for the 2017 election.

Petitioner alleged Respondent HOA violated Bylaws by stating only one Board position was up for election for a one-year term in 2017, when Petitioner contended two positions (one-year and two-year terms) were open.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

Analytics Highlights

Topics: HOA Election, Bylaw Violation, Board Term, Staggered Terms, Condominium Association
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.08
  • R4-28-1310

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Video Overview

Audio Overview

Decision Documents

17F-H1717026-REL Decision – 570560.pdf

Uploaded 2026-04-24T11:04:17 (120.2 KB)

17F-H1717026-REL Decision – 570560.pdf

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17F-H1717026-REL Decision – 576045.pdf

Uploaded 2026-01-23T17:19:41 (959.2 KB)

  • 2016

Study Guide: Pyron v. Cliffs at North Mountain Condominium Association, Inc.

This study guide provides a review of the administrative hearing case No. 17F-H1717026-REL between Tom Pyron (Petitioner) and the Cliffs at North Mountain Condominium Association, Inc. (Respondent). It covers the central arguments, key evidence, relevant bylaws, and the final legal decision.

Short Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.

1. What was the single issue at the heart of Tom Pyron’s petition filed on March 16, 2017?

2. According to the Association’s bylaws, how are Board of Director terms structured when the board consists of three members?

3. What was the Petitioner’s argument regarding Jeff Oursland’s term on the Board of Directors?

4. What was the Respondent’s counter-argument regarding Barbara Ahlstrand’s 2015 election and, subsequently, Jeff Oursland’s term?

5. What actions did the Respondent take in an attempt to resolve the dispute with the Petitioner before the hearing?

6. Who was the key witness for the Respondent, and what was their role?

7. Explain the legal standard “preponderance of the evidence” as it is defined in the case documents.

8. What was the Administrative Law Judge’s core legal reasoning for concluding that only one board position was open in 2017?

9. What was the final outcome of the case as stated in the Recommended Order and adopted by the Commissioner of the Department of Real Estate?

10. Following the Final Order issued on July 12, 2017, what legal recourse was available to a party dissatisfied with the decision?

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Answer Key

1. Tom Pyron’s petition alleged that the Respondent violated its bylaws by announcing only one Board position was open for a one-year term in the 2017 election. Pyron contended that two positions—one for a one-year term and another for a two-year term—should have been up for election.

2. Bylaw Article III, § 3.02 specifies that for a three-person board, the directors hold staggered terms of one year, two years, and three years. The bylaw further dictates which terms end at which annual meetings (e.g., the two-year term ends at the second, fourth, sixth, etc., annual meetings).

3. The Petitioner argued that Barbara Ahlstrand was elected to a two-year term in 2015. Therefore, when Jeff Oursland was appointed to fill her vacancy, his term should have expired in 2017, meaning his two-year position should have been on the 2017 ballot.

4. The Respondent argued that under the plain language of Bylaw § 3.02, only the one-year and three-year terms were up for election in 2015. Since Sandra Singer received the most votes and secured the three-year term, Ms. Ahlstrand must have been elected to the one-year term, meaning Mr. Oursland’s appointed term expired in 2016.

5. In response to the petition, the Respondent twice rescheduled the 2017 annual meeting and re-issued ballots to include all candidates who had submitted an application. The Association also offered to pay the Petitioner’s $500 single-issue filing fee if he was satisfied with this resolution.

6. The key witness for the Respondent was Cynthia Quillen. She served as the Community Manager for the Association’s management company, Associated Property Management, and testified about the Board’s composition and her interpretation of the bylaws.

7. “A preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence, which is sufficient to incline a fair and impartial mind to one side of an issue over the other.

8. The Judge’s decision was based on the “plain language” of Bylaw § 3.02. This bylaw dictated that only the one-year and three-year terms were up for election in 2015. Since the parties agreed Ms. Singer won the three-year term, the Judge concluded Ms. Ahlstrand must have been elected to the one-year term, making the Respondent’s subsequent actions and election notices correct.

9. The Administrative Law Judge’s Recommended Order was that the Petitioner’s petition be denied. This order was adopted by the Commissioner of the Department of Real Estate in a Final Order, making it binding on the parties.

10. According to the Final Order, a dissatisfied party could request a rehearing within thirty days by filing a petition setting forth the reasons. The document lists eight specific causes for a rehearing. A party could also appeal the final administrative decision by filing a complaint for judicial review.

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Essay Questions

Instructions: The following questions are designed to test a deeper understanding of the case. Formulate a comprehensive essay-style response for each.

1. Analyze the conflicting interpretations of the 2015 election presented by the Petitioner and the Respondent. How did the Administrative Law Judge use the “plain language” of Bylaw § 3.02 to resolve this conflict, and what does this reveal about the interpretation of governing documents in legal disputes?

2. Trace the chain of events from the 2012 election to the 2017 dispute. Explain how the board composition, terms of office, and specific actions (like Ms. Ahlstrand’s resignation) compounded to create the disagreement at the heart of this case.

3. Discuss the burden of proof in this administrative hearing. Define “preponderance of the evidence” and explain why the Petitioner, Tom Pyron, failed to meet this standard in the view of the Administrative Law Judge.

4. Examine the roles and authorities of the different entities involved: the homeowners’ association Board, the Arizona Department of Real Estate, the Office of Administrative Hearings, and the Administrative Law Judge. How do these bodies interact to resolve disputes within a planned community?

5. Based on the Final Order, outline the legal recourse available to Tom Pyron following the denial of his petition. What specific grounds for a rehearing are mentioned, and what is the process for further appeal?

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Glossary of Key Terms

Definition

Acclamation

A form of election where a candidate is declared elected without opposition, as when Sandra Singer’s election was “unanimously passed by acclamation” in 2014.

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, draws conclusions of law, and issues a recommended decision. In this case, the ALJ was Diane Mihalsky.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations. The Commissioner of the Department, Judy Lowe, issued the Final Order in this case.

Bylaws

The governing documents of the homeowners’ association that outline its rules and procedures, including the number of directors, terms of office, and process for filling vacancies.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which accepts and adopts the Administrative Law Judge’s decision. This order becomes effective and can only be changed by a successful rehearing or judicial appeal.

Office of Administrative Hearings (OAH)

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

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner was Tom Pyron, a homeowner in the association.

Preponderance of the Evidence

The standard of proof required in this hearing, defined as “proof as convinces the trier of fact that the contention is more probably true than not.” The Petitioner bore this burden to prove the Respondent violated its bylaws.

Recommended Order

The decision and order issued by the Administrative Law Judge following a hearing. In this case, it recommended that the Petitioner’s petition be denied.

Rehearing

A formal request to have a case heard again. The Final Order specifies that a petition for rehearing must be filed within thirty days and may be granted for specific causes, such as newly discovered evidence or an arbitrary decision.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Cliffs at North Mountain Condominium Association, Inc.

Staggered Terms

A system where not all board members are elected at the same time. As defined in Bylaw § 3.02, the three-person board had terms of one, two, and three years to ensure continuity.

Unexpired Portion of the Prior Director’s Term

The remainder of a board member’s term that an appointee serves after the original member resigns or is removed, as specified in Bylaw § 3.6.

We Read an HOA Lawsuit So You Don’t Have To: 3 Shocking Lessons Hidden in the Bylaws

1. Introduction: The Hidden Drama in Your Community’s Fine Print

If you live in a condominium association or a planned community, you’re familiar with the thick packet of governing documents you received at closing—the Covenants, Conditions & Restrictions (CC&Rs) and the Bylaws. For many, these documents are filed away and forgotten, seen as a collection of mundane rules about trash cans and paint colors. But hidden within that legalese is the complete operating manual for your community, and a simple misunderstanding of its contents can have significant consequences.

What happens when a homeowner’s interpretation of the rules clashes with the association’s? In a case from Arizona involving homeowner Tom Pyron and the Cliffs at North Mountain Condominium Association, the dispute escalated into a formal administrative hearing. The central question was simple: how many board seats were open for election in 2017? But this wasn’t just a procedural disagreement. Court documents reveal that before the hearing, the association offered to re-issue ballots to include all candidates and even “offered to pay Petitioner’s $500 single-issue filing fee if he was satisfied with the proposed resolution.” The homeowner refused.

This decision transforms the case from a simple rules dispute into a cautionary tale about how a deeply held belief can override a pragmatic, no-cost compromise. The official court documents offer a fascinating look at how community governance can go awry, revealing powerful, practical lessons for any homeowner or board member who believes they know what the rules should say.

2. Takeaway 1: Your Beliefs Don’t Overrule the Bylaws

What You Think the Rules Say Doesn’t Matter—Only What They Actually Say

The core of the dispute rested on a belief held by a former board member, Ms. Ahlstrand, who was elected in 2015. She testified that she believed she had been elected to a two-year term. Based on this belief, the petitioner argued that the director appointed to replace her after her resignation should have served until 2017, meaning a two-year position was open for election that year.

The Administrative Law Judge, however, looked not at what anyone believed, but at the “plain language” of the community’s governing documents. The judge’s conclusion was a matter of inescapable logic derived directly from the bylaws:

1. First, Bylaw § 3.02 clearly states that in an election with multiple open seats, “the person receiving the most votes will become the Director with the longest term.”

2. Next, the court record shows that “the parties agreed that… because she got the most votes, Ms. Singer was elected to a three-year term” in the 2015 election.

3. Finally, the judge determined that according to the same bylaw, only the one-year and three-year terms were available in 2015. Since Ms. Singer secured the three-year term, Ms. Ahlstrand, by definition, must have been elected to the only other available position: the one-year term.

The lesson is stark and unambiguous: an individual’s interpretation or assumption, however sincere, cannot change the written rules. The bylaws are the ultimate authority. As the judge stated in the final decision, the documents speak for themselves.

The Bylaws do not allow their plain language to be modified or amended by a member’s understanding.

3. Takeaway 2: The Domino Effect of a Single Resignation

A Single Resignation Can Create Years of Confusion

This entire legal conflict was set in motion by a single, routine event: a board member’s resignation. The timeline of events shows how one small action, when combined with a misunderstanding of the rules, can create a ripple effect with long-lasting consequences.

1. On August 3, 2015, the newly elected board member, Ms. Ahlstrand, resigned.

2. The Board then appointed another member, Jeff Oursland, to serve the remainder of her term, as permitted by the bylaws.

3. The critical point of contention became the length of that “remainder.” Was it the rest of a one-year term ending in 2016, or a two-year term ending in 2017?

4. The judge’s determination that Ahlstrand’s original term was only one year (as explained above) meant that Mr. Oursland’s appointed term correctly expired in 2016. He was then properly elected to a new two-year term at the 2016 meeting.

5. This sequence confirmed that the association was correct all along: only one board position (a one-year term) was actually open for election in 2017.

A single resignation created two years of confusion that ultimately required an administrative hearing to resolve. It’s a powerful reminder of how crucial it is for boards to precisely follow their own procedures, especially when handling vacancies and appointments, as one small error can cascade into years of conflict.

4. Takeaway 3: The Hidden Complexity of “Staggered Terms”

“Staggered Terms” Are Designed for Stability, But Can Cause Chaos

Many associations use staggered terms for their board of directors. The concept, outlined in Bylaw § 3.02 for the Cliffs at North Mountain, is simple: instead of all directors being elected at once, they serve terms of varying lengths (in this case, one, two, and three years). This is a common and effective practice designed to ensure leadership continuity and prevent the entire board from turning over in a single election.

However, this case reveals the hidden downside of that system: complexity. The staggered terms created an election cycle where the available term lengths changed every single year. The court documents show that in 2014, the one-year and two-year positions were on the ballot. In 2015, the one-year and three-year terms were available. This rotating schedule was difficult for members—and apparently even some board members—to track accurately.

This built-in complexity was the root cause of the entire disagreement. The system’s lack of intuitive clarity created the exact conditions necessary for a personal belief, like Ms. Ahlstrand’s, to seem plausible even when it was contrary to the bylaws. The very governance structure intended to create stability inadvertently created the fertile ground for confusion, allowing a misunderstanding to grow into a lawsuit.

5. Conclusion: The Power Is in the Paperwork

The overarching theme from this case is that in the world of community associations, the governing documents are the ultimate source of truth. They are not merely suggestions; they are the binding legal framework that dictates how the community must operate. A board’s actions and a homeowner’s rights are all defined within that paperwork.

In the end, the homeowner’s petition was denied, and the judge’s order affirmed the association’s position. The written rules, as found in the bylaws, prevailed over individual beliefs and interpretations. The case stands as a powerful testament to the importance of reading, understanding, and strictly adhering to your community’s foundational documents.

This entire conflict stemmed from a few lines in a legal document—when was the last time you read yours?

Case Participants

Petitioner Side

  • Tom Pyron (petitioner)

Respondent Side

  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
  • Cynthia Quillen (property manager)
    Associated Property Management
    Community Manager

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (ADRE commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (coordinator)
    HOA Coordinator/Admin Official listed for rehearing requests and transmission

Other Participants

  • Anne Fugate (witness)
    Elected to the Board in 2012
  • Barbara Ahlstrand (witness)
    Elected to the Board in 2015
  • Kevin Downey (witness)
    Candidate for 2017 election
  • John Haunschild (board member)
    Elected to the Board in 2012
  • Ron Cadaret (board member)
    Elected to the Board in 2012, re-elected 2013
  • Sandra Singer (board member)
    Elected to the Board in 2014 and 2015
  • Jeff Oursland (board member)
    Appointed to the Board in 2015, elected 2016
  • Steve Molever (board member)
    Elected to the Board in 2016