CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)
Outcome Summary
The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.
Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).
Key Issues & Findings
Alleged violation by HOA approving a block wall built by neighbors (Hendersons)
Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.
Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01(A)(1)
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: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)
Outcome Summary
The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.
Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).
Key Issues & Findings
Alleged violation by HOA approving a block wall built by neighbors (Hendersons)
Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.
Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01(A)(1)
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: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
Additional Citations:
A.R.S. § 32-2199.01(A)(1)
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
19F-H1919051-REL Decision – 710478.pdf
Uploaded 2025-10-09T03:34:10 (150.0 KB)
19F-H1919051-REL Decision – 711115.pdf
Uploaded 2025-10-09T03:34:10 (149.9 KB)
Briefing Doc – 19F-H1919051-REL
Case Briefing: Norman v. Rancho Del Lago Community Association
Executive Summary
This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.
The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.
The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.
Case Overview
Parties and Key Entities
Name/Entity
Description
Petitioners
David and Brenda Norman
Homeowners in the Rancho Del Lago Community.
Respondent
Rancho Del Lago Community Association
The homeowners’ association (HOA) for the community.
Neighbors
The Hendersons
The Petitioners’ next-door neighbors who built the disputed wall.
Management Co.
Management Solutions
The company managing the Respondent HOA.
Witness (Respondent)
Spencer Brod
Employee of Management Solutions overseeing the Respondent’s affairs.
Administrative Law Judge
Diane Mihalsky
Presiding judge from the Office of Administrative Hearings.
Regulating Body
Arizona Department of Real Estate
State agency authorized to hear certain HOA disputes.
Adjudicating Body
Office of Administrative Hearings
Independent state agency that conducted the evidentiary hearing.
Procedural Details
Detail
Information
Case Number
19F-H1919051-REL
Petition Filed
On or about February 28, 2019
Hearing Date
May 8, 2019
Amended Decision Date
May 28, 2019
Timeline of Key Events
• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.
• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.
• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.
• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.
• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.
• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.
• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.
• October 13, 2017: The ARC approves the Petitioners’ wall extension request.
• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.
• By November 2017: The Hendersons’ wall appears to have been constructed.
• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.
• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.
Governing Documents and Key Provisions
The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.
Document
Provision
Description
Article I § (p)
Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.
Article II § 2(a)
Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.
Article XII § 1
Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”
Common Project Guidelines
Section 3.11(D)(1)
States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.
Common Project Guidelines
Section 4.21
Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”
Summary of Testimony and Evidence
Testimony of Brenda Norman (Petitioner)
• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.
• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.
• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.
• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.
• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.
Testimony of Spencer Brod (for Respondent)
• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.
• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.
• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.
• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.
• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.
Administrative Law Judge’s Conclusions of Law
The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.
1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.
2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.
3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”
4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.
5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.
6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.
Final Order
IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.
Study Guide – 19F-H1919051-REL
Study Guide: Norman v. Rancho Del Lago Community Association
This guide is designed to review the administrative legal case between homeowners David and Brenda Norman and their homeowners’ association, the Rancho Del Lago Community Association, concerning a dispute over a neighbor’s wall.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, drawing only from the information provided in the case documents.
1. What was the central violation of the homeowners’ association rules alleged by the Petitioners in their February 28, 2019, petition?
2. Identify the three main groups of individuals or entities involved in the dispute: the Petitioners, the Respondent, and the neighbors.
3. According to the Respondent’s CC&Rs, what is a “Party Wall” and what primary responsibility does it create for adjacent homeowners?
4. Describe the two separate wall-related Architectural Variance Requests (AVRs) submitted by the Hendersons in March and April of 2017.
5. Why did the Architectural Review Committee (ARC) initially deny the Petitioners’ request to build a new driveway, and what was the outcome of this denial?
6. What is the role of the “Declarant” within the Rancho Del Lago Community Association, and what influence do they hold over the board and the ARC?
7. The ARC approved a wall proposal for the Petitioners on October 13, 2017. Why did the Petitioners choose not to build this approved wall?
8. According to the CC&Rs, what is the ultimate authority of the Architectural Review Committee (ARC) in rendering its decisions?
9. On what legal grounds did the Administrative Law Judge ultimately dismiss the Petitioners’ case?
10. Who bore the “burden of proof” in this hearing, and what does this legal standard require?
——————————————————————————–
Quiz Answer Key
1. The Petitioners alleged that the Respondent (the homeowners’ association) violated Section 3.11(D)(1) of the Common Project Guidelines. This section states that “closely parallel walls shall be disapproved,” and the Petitioners argued that the association violated this rule by approving the wall built by their neighbors, the Hendersons.
2. The Petitioners were homeowners David and Brenda Norman. The Respondent was the Rancho Del Lago Community Association. The neighbors, who were central to the dispute but not a party to the case, were the Hendersons.
3. A “Party Wall” is a wall situated on the property line between two or more contiguous lots. It creates a shared right of use and a joint obligation for all adjoining owners to rebuild and repair the wall at their shared expense.
4. The Hendersons first submitted an AVR on March 8, 2017, to extend the existing common party wall, for which Mrs. Norman gave consent. On April 27, 2017, they submitted a different AVR to build a new wall located entirely on their property, 6 inches inside the property line, which did not require the Normans’ consent.
5. The ARC denied the Petitioners’ September 5, 2017, request for an 11-foot wide driveway because a driveway already existed on the opposite side of the house where the garage was located. Despite the denial, the Petitioners built the driveway anyway, which resulted in the Respondent issuing them a Notice of Violation.
6. The “Declarant” is the original developer that built the subdivision. At the time of the hearing, the Respondent association was still under the control of the Declarant, who appointed all three directors of the board and was also a member of the Architectural Review Committee (ARC).
7. The Petitioners did not build the approved wall because the plan required it to be built at least 3 feet inside their property line to avoid being a party wall. Their contractor advised them they would be “crazy to give up the 3’ of property” that would lie between their new wall and the Hendersons’ wall.
8. According to Article XII, § 1 of the CC&Rs, “the decision of the [ARC] shall be sole, absolute and final on all matters submitted to it pursuant to this Declaration and/or the Design Guidelines.”
9. The judge dismissed the case due to a lack of jurisdiction. According to Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate does not have jurisdiction to hear disputes between owners to which the association is not a party. The judge framed the issue as a private dispute between the Normans and the Hendersons.
10. The Petitioners (the Normans) bore the burden of proof to establish that the Respondent violated the community rules. This standard, known as a “preponderance of the evidence,” requires presenting evidence that is more convincing and more likely true than not.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response to each prompt, citing specific facts and rules from the case documents to support your arguments.
1. Analyze the concept of a “Party Wall” versus a privately-owned wall within the context of this case. How did the distinction between these two types of walls become the central point of contention and influence the decisions made by the Hendersons, the Normans, and the ARC?
2. Discuss the powers and limitations of the Rancho Del Lago Community Association’s Architectural Review Committee (ARC) as outlined in the CC&Rs and Common Project Guidelines. How did the ARC’s discretionary authority, particularly under Section 4.21 of the guidelines, impact the events of this dispute?
3. Trace the timeline of Architectural Variance Requests (AVRs) submitted by both the Normans and the Hendersons. Evaluate how the sequence of approvals, denials, and unbuilt projects contributed to the escalation of the dispute and ultimately led to the legal hearing.
4. Explain the legal reasoning behind the Administrative Law Judge’s final decision. Why was the concept of “jurisdiction” more critical to the outcome than the merits of the Normans’ claim regarding “closely parallel walls”? Refer to the specific Arizona Revised Statute (A.R.S.) cited in the decision.
5. The judge described the potential wall the Petitioners wish to build as an “archetypical spite fence.” Based on the testimony and evidence presented in the case, argue for or against this characterization.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Diane Mihalsky, who presides over hearings at the Office of Administrative Hearings and renders decisions on disputes involving state agencies.
Architectural Review Committee (ARC)
A committee established by the Declarant and governed by the CC&Rs, responsible for reviewing and approving or denying any proposed improvements that alter the exterior appearance of properties within the community. Its decisions are described as “sole, absolute and final.”
Architectural Variance Request (AVR)
The formal application submitted by a homeowner to the ARC to request approval for an exterior improvement or modification to their property.
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 regarding violations of community documents.
CC&Rs (Covenants, Conditions, and Restrictions)
The legal documents that establish the rules, regulations, and obligations for homeowners within a planned community like Rancho Del Lago.
Closely Parallel Walls
A term from Section 3.11(D)(1) of the Common Project Guidelines that are to be disapproved. The term is not explicitly defined, but testimony suggests a wall 3 feet from another would be approved, making the threshold for “close” less than that.
Common Project Guidelines
A set of rules adopted by the ARC in December 2003 that govern all exterior improvements and provide standards for the Design Review Process. These guidelines supplement the CC&Rs.
Declarant
The original developer that built the subdivision. In this case, the Declarant still controlled the association’s Board of Directors and the ARC.
Jurisdiction
The legal authority of a court or agency to hear and decide a case. The petition was dismissed because the Department was found to lack jurisdiction over disputes solely between homeowners.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted by an Administrative Law Judge.
Party Wall
As defined in the CC&Rs, a wall on the property line between contiguous lots. Owners have equal rights to use it and share joint financial responsibility for its repair and maintenance.
Petitioners
The party that initiates a legal action or petition. In this case, homeowners David and Brenda Norman.
Preponderance of the Evidence
The standard of proof required in this civil administrative hearing. It means the evidence presented must be sufficient to convince the judge that a claim is more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Lago Community Association.
Restrictive Covenant
A provision in a deed or community document (like a CC&R) that limits the use of the property. Arizona law holds that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.
Blog Post – 19F-H1919051-REL
The Six-Inch Wall That Ignited a Legal Battle: 4 Shocking Lessons from a Brutal HOA War
1.0 Introduction: The Neighbor Next Door
Living next to someone is a universal experience, and it’s remarkable how quickly a small disagreement over a fence or a property line can spiral into a full-blown conflict. For two families in an Arizona HOA, what started as a plan for a backyard wall ended in a formal administrative law hearing, providing a stark case study in property law, association rules, and human nature.
This dispute, involving homeowners David and Brenda Norman and their neighbors, the Hendersons, dissects four critical lessons that challenge common assumptions about homeowner rights and association duties. Their story is a powerful cautionary tale about property lines, HOA authority, and the high cost of a neighborhood war.
2.0 Takeaway 1: The Six-Inch Difference That Changes Everything
1. A Wall on the Property Line Isn’t the Same as a Wall Near It
In property law, inches are everything. The community’s Covenants, Conditions, and Restrictions (CC&Rs) defined a “Party Wall” as a structure sitting directly on the property line between two lots. By this definition, these walls are a shared responsibility, requiring mutual consent from both homeowners for construction and shared costs for maintenance.
This distinction became the pivot on which the entire case turned. Initially, the Hendersons submitted plans to build a shared Party Wall, and the Normans gave their required consent. But then the plan changed. The Hendersons withdrew that request and submitted a new one: to build a wall located just six inches inside their own property line. The record doesn’t state definitively why the Hendersons changed their plan, though testimony suggested the Normans may have rescinded their initial consent.
This was a masterstroke of procedural navigation; by sacrificing a mere six inches of their yard, the Hendersons effectively bought the legal right to build without their neighbors’ consent, turning a potential year-long dispute into a matter of a simple ARC approval. By moving the structure entirely onto their own lot, it was no longer a “Party Wall” but their private property. While the Hendersons had successfully navigated the HOA’s rules, the Normans’ next step was to try and force the HOA to intervene directly—a move that would expose a common misunderstanding about the limits of an association’s power.
3.0 Takeaway 2: Your HOA Isn’t the Neighborhood Referee
2. The HOA’s Power to Intervene Has Surprising Limits
A common assumption among homeowners is that the HOA must mediate any and all disputes between residents. This case proves that assumption is fundamentally incorrect.
When the conflict escalated, the HOA’s position was unwavering. Spencer Brod, an employee of the association’s management company, testified that the association “never gets involved in disputes between neighbors.” Its role is to enforce community rules as they relate to the association, not to take sides in personal conflicts between homeowners.
The Administrative Law Judge presiding over the case reinforced this legal reality, citing Arizona law to clarify the limits of both the HOA’s and the state’s jurisdiction. The judge’s finding was unequivocal:
Neither the CC&Rs nor the Common Project Guidelines require Respondent [the HOA] to mediate or resolve a dispute between neighbors by taking one side or the other. A.R.S. § 32-2199.01(A)(1) provides that ‘[t]he department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.’
This finding is a crucial lesson: while an HOA enforces its governing documents, it is not a neighborhood court and cannot be compelled to referee personal disagreements.
4.0 Takeaway 3: You Can’t Demand a Neighbor Play by the Rules If You Don’t
3. Coming to the Table with Clean Hands Matters
The case contained a powerful element of irony that proved fatal to the Normans’ petition. The judge’s official Findings of Fact reveal that while demanding the HOA enforce its rules against the Hendersons, the Normans had a significant compliance issue of their own.
In September 2017, the Normans submitted a request to build an 11-foot wide concrete driveway “to provide a solid walking surface because Mrs. Norman was disabled and had difficulty walking.” While the motivation was sympathetic, the Architectural Review Committee (ARC) denied the request. Despite the denial, the Normans built the driveway anyway and were subsequently issued a Notice of Violation by the HOA.
Critically, the Normans’ own rule-breaking occurred after the Hendersons’ wall was approved. In the very midst of their dispute, while formulating a case against their neighbors, they chose to defy the ARC themselves. This is a classic illustration of the “unclean hands” doctrine. In any legal or administrative forum, one’s credibility is paramount. The Normans were asking the HOA to be a strict enforcer of rules they themselves had flagrantly violated, a position that is almost always untenable.
5.0 Takeaway 4: When a Judge Calls It a “Spite Fence”
4. The Court May Look Past the Rules and See Your Intent
Even in a hearing focused on the technicalities of CC&Rs, the underlying human motivations of the conflict did not go unnoticed. The HOA’s ARC had previously approved a plan for the Normans to build their own wall, provided it was located three feet inside their property line. They refused. Brenda Norman testified that their contractor told them they were “crazy to give up the 3’ of property.” Mrs. Norman also argued that a wall on her property would be denied as a prohibited “closely parallel wall,” but this claim was directly contradicted by the ARC’s own actions—they had already approved her wall at the three-foot distance.
The judge’s “spite fence” comment wasn’t just an observation; it was the legal culmination of the Normans’ entire pattern of behavior. Their refusal to accept an approved wall on their own property (losing 3 feet) while demanding their neighbor tear down a wall built on theirs (losing 0 feet) painted a clear picture of animosity, not a genuine need for property protection. The judge saw through the legal arguments to the core of the issue:
The wall that Petitioners testified that they must build to protect their property appears to be an archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.
A “spite fence” is a legal term for a structure erected with malicious intent, where the primary purpose is not to improve one’s own property but to annoy, inconvenience, or harm a neighbor. The judge’s use of this term was a powerful signal that, in the court’s view, the dispute was no longer about property rights, but about personal animus.
6.0 Conclusion: A Wall Is a Wall, But a Neighbor Is Forever
This case is a cautionary tale written in concrete and legal filings. It shows how a dispute over six inches of soil can metastasize, fueled by a misunderstanding of HOA rules and an unwillingness to compromise, ultimately costing both parties time, money, and peace of mind. From the critical importance of a few inches of land to the defined limits of an HOA’s authority, the details matter.
Ultimately, the story of the Normans and the Hendersons serves as a powerful reminder that navigating HOA living requires a clear-eyed understanding of the actual rules, not just a sense of what seems “fair.” It leaves us with a critical question to consider.
When it comes to our homes and neighbors, is it more important to be right, or to find a way to live in peace?
Case Participants
Petitioner Side
David Norman(petitioner) Appeared telephonically on own behalf
Brenda Norman(petitioner) Testified on Petitioners' behalf
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Law Group Represented Rancho Del Lago Community Association
CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)
Outcome Summary
The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.
Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).
Key Issues & Findings
Alleged violation by HOA approving a block wall built by neighbors (Hendersons)
Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.
Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01(A)(1)
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: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
Additional Citations:
A.R.S. § 32-2199.01(A)(1)
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
19F-H1919051-REL Decision – 710478.pdf
Uploaded 2026-01-23T17:29:06 (150.0 KB)
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Briefing Doc – 19F-H1919051-REL
Case Briefing: Norman v. Rancho Del Lago Community Association
Executive Summary
This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.
The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.
The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.
Case Overview
Parties and Key Entities
Name/Entity
Description
Petitioners
David and Brenda Norman
Homeowners in the Rancho Del Lago Community.
Respondent
Rancho Del Lago Community Association
The homeowners’ association (HOA) for the community.
Neighbors
The Hendersons
The Petitioners’ next-door neighbors who built the disputed wall.
Management Co.
Management Solutions
The company managing the Respondent HOA.
Witness (Respondent)
Spencer Brod
Employee of Management Solutions overseeing the Respondent’s affairs.
Administrative Law Judge
Diane Mihalsky
Presiding judge from the Office of Administrative Hearings.
Regulating Body
Arizona Department of Real Estate
State agency authorized to hear certain HOA disputes.
Adjudicating Body
Office of Administrative Hearings
Independent state agency that conducted the evidentiary hearing.
Procedural Details
Detail
Information
Case Number
19F-H1919051-REL
Petition Filed
On or about February 28, 2019
Hearing Date
May 8, 2019
Amended Decision Date
May 28, 2019
Timeline of Key Events
• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.
• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.
• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.
• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.
• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.
• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.
• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.
• October 13, 2017: The ARC approves the Petitioners’ wall extension request.
• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.
• By November 2017: The Hendersons’ wall appears to have been constructed.
• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.
• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.
Governing Documents and Key Provisions
The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.
Document
Provision
Description
Article I § (p)
Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.
Article II § 2(a)
Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.
Article XII § 1
Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”
Common Project Guidelines
Section 3.11(D)(1)
States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.
Common Project Guidelines
Section 4.21
Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”
Summary of Testimony and Evidence
Testimony of Brenda Norman (Petitioner)
• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.
• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.
• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.
• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.
• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.
Testimony of Spencer Brod (for Respondent)
• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.
• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.
• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.
• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.
• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.
Administrative Law Judge’s Conclusions of Law
The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.
1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.
2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.
3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”
4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.
5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.
6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.
Final Order
IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.
Study Guide – 19F-H1919051-REL
Study Guide: Norman v. Rancho Del Lago Community Association
This guide is designed to review the administrative legal case between homeowners David and Brenda Norman and their homeowners’ association, the Rancho Del Lago Community Association, concerning a dispute over a neighbor’s wall.
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Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, drawing only from the information provided in the case documents.
1. What was the central violation of the homeowners’ association rules alleged by the Petitioners in their February 28, 2019, petition?
2. Identify the three main groups of individuals or entities involved in the dispute: the Petitioners, the Respondent, and the neighbors.
3. According to the Respondent’s CC&Rs, what is a “Party Wall” and what primary responsibility does it create for adjacent homeowners?
4. Describe the two separate wall-related Architectural Variance Requests (AVRs) submitted by the Hendersons in March and April of 2017.
5. Why did the Architectural Review Committee (ARC) initially deny the Petitioners’ request to build a new driveway, and what was the outcome of this denial?
6. What is the role of the “Declarant” within the Rancho Del Lago Community Association, and what influence do they hold over the board and the ARC?
7. The ARC approved a wall proposal for the Petitioners on October 13, 2017. Why did the Petitioners choose not to build this approved wall?
8. According to the CC&Rs, what is the ultimate authority of the Architectural Review Committee (ARC) in rendering its decisions?
9. On what legal grounds did the Administrative Law Judge ultimately dismiss the Petitioners’ case?
10. Who bore the “burden of proof” in this hearing, and what does this legal standard require?
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Quiz Answer Key
1. The Petitioners alleged that the Respondent (the homeowners’ association) violated Section 3.11(D)(1) of the Common Project Guidelines. This section states that “closely parallel walls shall be disapproved,” and the Petitioners argued that the association violated this rule by approving the wall built by their neighbors, the Hendersons.
2. The Petitioners were homeowners David and Brenda Norman. The Respondent was the Rancho Del Lago Community Association. The neighbors, who were central to the dispute but not a party to the case, were the Hendersons.
3. A “Party Wall” is a wall situated on the property line between two or more contiguous lots. It creates a shared right of use and a joint obligation for all adjoining owners to rebuild and repair the wall at their shared expense.
4. The Hendersons first submitted an AVR on March 8, 2017, to extend the existing common party wall, for which Mrs. Norman gave consent. On April 27, 2017, they submitted a different AVR to build a new wall located entirely on their property, 6 inches inside the property line, which did not require the Normans’ consent.
5. The ARC denied the Petitioners’ September 5, 2017, request for an 11-foot wide driveway because a driveway already existed on the opposite side of the house where the garage was located. Despite the denial, the Petitioners built the driveway anyway, which resulted in the Respondent issuing them a Notice of Violation.
6. The “Declarant” is the original developer that built the subdivision. At the time of the hearing, the Respondent association was still under the control of the Declarant, who appointed all three directors of the board and was also a member of the Architectural Review Committee (ARC).
7. The Petitioners did not build the approved wall because the plan required it to be built at least 3 feet inside their property line to avoid being a party wall. Their contractor advised them they would be “crazy to give up the 3’ of property” that would lie between their new wall and the Hendersons’ wall.
8. According to Article XII, § 1 of the CC&Rs, “the decision of the [ARC] shall be sole, absolute and final on all matters submitted to it pursuant to this Declaration and/or the Design Guidelines.”
9. The judge dismissed the case due to a lack of jurisdiction. According to Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate does not have jurisdiction to hear disputes between owners to which the association is not a party. The judge framed the issue as a private dispute between the Normans and the Hendersons.
10. The Petitioners (the Normans) bore the burden of proof to establish that the Respondent violated the community rules. This standard, known as a “preponderance of the evidence,” requires presenting evidence that is more convincing and more likely true than not.
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Essay Questions
Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response to each prompt, citing specific facts and rules from the case documents to support your arguments.
1. Analyze the concept of a “Party Wall” versus a privately-owned wall within the context of this case. How did the distinction between these two types of walls become the central point of contention and influence the decisions made by the Hendersons, the Normans, and the ARC?
2. Discuss the powers and limitations of the Rancho Del Lago Community Association’s Architectural Review Committee (ARC) as outlined in the CC&Rs and Common Project Guidelines. How did the ARC’s discretionary authority, particularly under Section 4.21 of the guidelines, impact the events of this dispute?
3. Trace the timeline of Architectural Variance Requests (AVRs) submitted by both the Normans and the Hendersons. Evaluate how the sequence of approvals, denials, and unbuilt projects contributed to the escalation of the dispute and ultimately led to the legal hearing.
4. Explain the legal reasoning behind the Administrative Law Judge’s final decision. Why was the concept of “jurisdiction” more critical to the outcome than the merits of the Normans’ claim regarding “closely parallel walls”? Refer to the specific Arizona Revised Statute (A.R.S.) cited in the decision.
5. The judge described the potential wall the Petitioners wish to build as an “archetypical spite fence.” Based on the testimony and evidence presented in the case, argue for or against this characterization.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Diane Mihalsky, who presides over hearings at the Office of Administrative Hearings and renders decisions on disputes involving state agencies.
Architectural Review Committee (ARC)
A committee established by the Declarant and governed by the CC&Rs, responsible for reviewing and approving or denying any proposed improvements that alter the exterior appearance of properties within the community. Its decisions are described as “sole, absolute and final.”
Architectural Variance Request (AVR)
The formal application submitted by a homeowner to the ARC to request approval for an exterior improvement or modification to their property.
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 regarding violations of community documents.
CC&Rs (Covenants, Conditions, and Restrictions)
The legal documents that establish the rules, regulations, and obligations for homeowners within a planned community like Rancho Del Lago.
Closely Parallel Walls
A term from Section 3.11(D)(1) of the Common Project Guidelines that are to be disapproved. The term is not explicitly defined, but testimony suggests a wall 3 feet from another would be approved, making the threshold for “close” less than that.
Common Project Guidelines
A set of rules adopted by the ARC in December 2003 that govern all exterior improvements and provide standards for the Design Review Process. These guidelines supplement the CC&Rs.
Declarant
The original developer that built the subdivision. In this case, the Declarant still controlled the association’s Board of Directors and the ARC.
Jurisdiction
The legal authority of a court or agency to hear and decide a case. The petition was dismissed because the Department was found to lack jurisdiction over disputes solely between homeowners.
Office of Administrative Hearings
An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted by an Administrative Law Judge.
Party Wall
As defined in the CC&Rs, a wall on the property line between contiguous lots. Owners have equal rights to use it and share joint financial responsibility for its repair and maintenance.
Petitioners
The party that initiates a legal action or petition. In this case, homeowners David and Brenda Norman.
Preponderance of the Evidence
The standard of proof required in this civil administrative hearing. It means the evidence presented must be sufficient to convince the judge that a claim is more probably true than not.
Respondent
The party against whom a petition is filed. In this case, the Rancho Del Lago Community Association.
Restrictive Covenant
A provision in a deed or community document (like a CC&R) that limits the use of the property. Arizona law holds that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.
Blog Post – 19F-H1919051-REL
The Six-Inch Wall That Ignited a Legal Battle: 4 Shocking Lessons from a Brutal HOA War
1.0 Introduction: The Neighbor Next Door
Living next to someone is a universal experience, and it’s remarkable how quickly a small disagreement over a fence or a property line can spiral into a full-blown conflict. For two families in an Arizona HOA, what started as a plan for a backyard wall ended in a formal administrative law hearing, providing a stark case study in property law, association rules, and human nature.
This dispute, involving homeowners David and Brenda Norman and their neighbors, the Hendersons, dissects four critical lessons that challenge common assumptions about homeowner rights and association duties. Their story is a powerful cautionary tale about property lines, HOA authority, and the high cost of a neighborhood war.
2.0 Takeaway 1: The Six-Inch Difference That Changes Everything
1. A Wall on the Property Line Isn’t the Same as a Wall Near It
In property law, inches are everything. The community’s Covenants, Conditions, and Restrictions (CC&Rs) defined a “Party Wall” as a structure sitting directly on the property line between two lots. By this definition, these walls are a shared responsibility, requiring mutual consent from both homeowners for construction and shared costs for maintenance.
This distinction became the pivot on which the entire case turned. Initially, the Hendersons submitted plans to build a shared Party Wall, and the Normans gave their required consent. But then the plan changed. The Hendersons withdrew that request and submitted a new one: to build a wall located just six inches inside their own property line. The record doesn’t state definitively why the Hendersons changed their plan, though testimony suggested the Normans may have rescinded their initial consent.
This was a masterstroke of procedural navigation; by sacrificing a mere six inches of their yard, the Hendersons effectively bought the legal right to build without their neighbors’ consent, turning a potential year-long dispute into a matter of a simple ARC approval. By moving the structure entirely onto their own lot, it was no longer a “Party Wall” but their private property. While the Hendersons had successfully navigated the HOA’s rules, the Normans’ next step was to try and force the HOA to intervene directly—a move that would expose a common misunderstanding about the limits of an association’s power.
3.0 Takeaway 2: Your HOA Isn’t the Neighborhood Referee
2. The HOA’s Power to Intervene Has Surprising Limits
A common assumption among homeowners is that the HOA must mediate any and all disputes between residents. This case proves that assumption is fundamentally incorrect.
When the conflict escalated, the HOA’s position was unwavering. Spencer Brod, an employee of the association’s management company, testified that the association “never gets involved in disputes between neighbors.” Its role is to enforce community rules as they relate to the association, not to take sides in personal conflicts between homeowners.
The Administrative Law Judge presiding over the case reinforced this legal reality, citing Arizona law to clarify the limits of both the HOA’s and the state’s jurisdiction. The judge’s finding was unequivocal:
Neither the CC&Rs nor the Common Project Guidelines require Respondent [the HOA] to mediate or resolve a dispute between neighbors by taking one side or the other. A.R.S. § 32-2199.01(A)(1) provides that ‘[t]he department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.’
This finding is a crucial lesson: while an HOA enforces its governing documents, it is not a neighborhood court and cannot be compelled to referee personal disagreements.
4.0 Takeaway 3: You Can’t Demand a Neighbor Play by the Rules If You Don’t
3. Coming to the Table with Clean Hands Matters
The case contained a powerful element of irony that proved fatal to the Normans’ petition. The judge’s official Findings of Fact reveal that while demanding the HOA enforce its rules against the Hendersons, the Normans had a significant compliance issue of their own.
In September 2017, the Normans submitted a request to build an 11-foot wide concrete driveway “to provide a solid walking surface because Mrs. Norman was disabled and had difficulty walking.” While the motivation was sympathetic, the Architectural Review Committee (ARC) denied the request. Despite the denial, the Normans built the driveway anyway and were subsequently issued a Notice of Violation by the HOA.
Critically, the Normans’ own rule-breaking occurred after the Hendersons’ wall was approved. In the very midst of their dispute, while formulating a case against their neighbors, they chose to defy the ARC themselves. This is a classic illustration of the “unclean hands” doctrine. In any legal or administrative forum, one’s credibility is paramount. The Normans were asking the HOA to be a strict enforcer of rules they themselves had flagrantly violated, a position that is almost always untenable.
5.0 Takeaway 4: When a Judge Calls It a “Spite Fence”
4. The Court May Look Past the Rules and See Your Intent
Even in a hearing focused on the technicalities of CC&Rs, the underlying human motivations of the conflict did not go unnoticed. The HOA’s ARC had previously approved a plan for the Normans to build their own wall, provided it was located three feet inside their property line. They refused. Brenda Norman testified that their contractor told them they were “crazy to give up the 3’ of property.” Mrs. Norman also argued that a wall on her property would be denied as a prohibited “closely parallel wall,” but this claim was directly contradicted by the ARC’s own actions—they had already approved her wall at the three-foot distance.
The judge’s “spite fence” comment wasn’t just an observation; it was the legal culmination of the Normans’ entire pattern of behavior. Their refusal to accept an approved wall on their own property (losing 3 feet) while demanding their neighbor tear down a wall built on theirs (losing 0 feet) painted a clear picture of animosity, not a genuine need for property protection. The judge saw through the legal arguments to the core of the issue:
The wall that Petitioners testified that they must build to protect their property appears to be an archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.
A “spite fence” is a legal term for a structure erected with malicious intent, where the primary purpose is not to improve one’s own property but to annoy, inconvenience, or harm a neighbor. The judge’s use of this term was a powerful signal that, in the court’s view, the dispute was no longer about property rights, but about personal animus.
6.0 Conclusion: A Wall Is a Wall, But a Neighbor Is Forever
This case is a cautionary tale written in concrete and legal filings. It shows how a dispute over six inches of soil can metastasize, fueled by a misunderstanding of HOA rules and an unwillingness to compromise, ultimately costing both parties time, money, and peace of mind. From the critical importance of a few inches of land to the defined limits of an HOA’s authority, the details matter.
Ultimately, the story of the Normans and the Hendersons serves as a powerful reminder that navigating HOA living requires a clear-eyed understanding of the actual rules, not just a sense of what seems “fair.” It leaves us with a critical question to consider.
When it comes to our homes and neighbors, is it more important to be right, or to find a way to live in peace?
Case Participants
Petitioner Side
David Norman(petitioner) Appeared telephonically on own behalf
Brenda Norman(petitioner) Testified on Petitioners' behalf
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Law Group Represented Rancho Del Lago Community Association
The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.
Petitioner alleged that the HOA refused to enforce parking rules regarding vehicle limits, requiring use of garages for first cars, and banning inoperable or commercial vehicles, despite written complaints. The ALJ found the HOA failed to enforce these rules or issue proper notices/fines.
Orders: MCIII ordered to pay Petitioner his filing fee of $500.00 within thirty days of the Order.
Briefing Document: Gray v. Mesa Coronado III Condominium Association (Case No. 19F-H1918004-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in the case of John W. Gray (Petitioner) versus the Mesa Coronado III Condominium Association (MCIII, Respondent). The central issue was MCIII’s failure to enforce its own Covenants, Conditions, and Restrictions (CC&Rs) and community rules regarding vehicle parking.
The Petitioner, Mr. Gray, presented credible and convincing evidence of widespread, ongoing parking violations by multiple residents, including exceeding vehicle limits, failing to use garages for primary parking, and the long-term storage of an inoperable vehicle in a common area parking space. The Respondent, MCIII, argued that the rules were difficult to enforce and that it had taken some action, including revising the rules shortly before the hearing.
The Administrative Law Judge (ALJ) ultimately rejected MCIII’s defense, concluding that the association had demonstrably failed to enforce its governing documents. The ALJ found that MCIII had viable enforcement options, such as issuing notices and fines, which it did not utilize. The final order deemed the Petitioner the prevailing party and required MCIII to reimburse his $500 filing fee.
Case Overview
• Parties Involved:
◦ Petitioner: John W. Gray, owner of Unit 122 in the Mesa Coronado III Condominium development.
◦ Respondent: Mesa Coronado III Condominium Association (MCIII), the unit owners’ association for the 33-unit development.
• Adjudicating Body: The Office of Administrative Hearings, following a referral from the Arizona Department of Real Estate.
• Hearing Date: October 29, 2018.
• Decision Date: November 30, 2018.
• Core Allegation: The Petitioner alleged that MCIII violated its own Rules, Regulations, and CC&Rs (specifically Articles 4.12, 4.13, and 4.14) by refusing to enforce parking rules despite receiving written complaints.
Background and Timeline of the Dispute
The conflict centered on parking within the MCIII development, which has 36 parking spaces for 33 units, with spaces being “open” and not assigned to specific units (with one exception).
• Pre-existing Rules (Adopted Jan. 2002):
◦ Owners were limited to two cars per unit.
◦ The garage was considered the “assigned” parking for the first car.
◦ Inoperable vehicles were banned from the property.
◦ A system of warnings and fines was in place for rule violations.
• May 17, 2018: Petitioner Gray submitted a formal written complaint to MCIII, identifying at least eight units in violation of parking rules. His complaint specified:
◦ Units with three cars were not using their garages for parking, instead using them for storage.
◦ An inoperable red truck had been stationary in the same parking spot for over a year.
◦ A commercial truck was present containing what he believed to be hazardous pool chemicals.
• MCIII’s Initial Response: The association acknowledged a “history” with the parking situation and stated the Board would review the rules for revision. MCIII noted it would investigate the red truck and also accused the Petitioner of regularly parking his own truck in a fire lane.
• July 16, 2018: The Petitioner sent a follow-up notification regarding the continuing violations.
• MCIII’s Second Response: The association informed the Petitioner that the issue would be on the agenda for the July 24, 2018 Board meeting and again reminded him of his own alleged fire lane parking violations.
• July 23, 2018: MCIII sent a notice to the owner of the unit associated with the inoperable red truck, informing them of the rules violation.
• July 30, 2018: The Petitioner filed his formal petition with the Arizona Department of Real Estate.
• October 23, 2018: Days before the hearing, the MCIII Board adopted new parking rules.
Petitioner’s Case and Evidence (John W. Gray)
The Petitioner built a detailed case demonstrating a pattern of non-enforcement by MCIII. The ALJ found his evidence to be “credible and convincing.”
• Specific Violations Alleged:
◦ Excess Vehicles: Multiple units possessed more than the two-vehicle limit.
◦ Garage Misuse: Residents with multiple cars were using common area parking spaces while their garages were used for storage.
◦ Inoperable Vehicle: A red truck remained parked and inoperable in one space for over a year, in direct violation of CC&R 4.14.
• Evidence Presented at Hearing:
◦ Photographs: A series of exhibits (6 through 16) contained photographs documenting the various offending vehicles.
◦ Private Investigation: The Petitioner hired a private investigator to obtain vehicle registration information to link specific vehicles to their owners and units (Exhibit 17).
◦ Quantitative Analysis: The Petitioner calculated that just 12 units were occupying 27 common area parking spaces, leaving very few spaces for the remaining 21 units.
◦ Written Correspondence: Copies of his complaints to MCIII were submitted, demonstrating that the association was put on notice of the violations.
Respondent’s Defense and Actions (MCIII)
The association’s defense centered on the difficulty of enforcement and subsequent actions taken after the Petitioner’s complaint.
• Core Arguments:
◦ Unenforceability: MCIII asserted that it was “almost impossible” to enforce the existing restrictive rules, as it would require constant 24/7 monitoring.
◦ Lack of Prior Complaints: The Respondent claimed it had received no complaints about parking prior to Mr. Gray’s.
◦ Issue is Moot: MCIII argued that its recent revision of the parking rules rendered the Petitioner’s complaint moot.
• Actions Taken by MCIII:
◦ Rule Revision: At the October 23, 2018 Board meeting, MCIII adopted new rules that eliminated the two-car limit but maintained the requirement for residents to use their garage first before occupying common area spaces. The ban on inoperable and commercial vehicles was also kept.
◦ Enforcement Against Petitioner: The Respondent noted that it had previously taken enforcement action by having the Petitioner’s own truck towed for parking in a fire lane.
◦ Notice Regarding Red Truck: MCIII provided evidence that it sent one letter on July 23, 2018, regarding the inoperable red truck.
◦ Towing Contract: The association stated it had recently contracted with Shaffer Towing for towing services.
◦ Community Manager Patrols: The “Community Manager,” Andrea Lacombe, testified that she drove through the property approximately twice a month looking for violations.
Governing Rules and CC&Rs
The decision rested on the specific language of the association’s governing documents in effect at the time of the complaint.
Document
Article/Rule
Provision
Rules & Regulations (Jan 2002)
Rule 3
Limits owners to two cars per unit and “assigns” the garage as parking for the first car.
CC&Rs (Jan 1999)
Art. 4.12
Prohibits the parking of commercial vehicles, RVs, boats, trailers, etc., on any part of the condominium outside of an enclosed garage.
CC&Rs (Jan 1999)
Art. 4.13
States that no parking space may be used for storage or any purpose other than parking of Family Vehicles. Grants the Board the right to assign spaces.
CC&Rs (Jan 1999)
Art. 4.14
Prohibits the storage of inoperable vehicles on any portion of the condominium other than within enclosed garages. Grants the Board the right to have violating vehicles towed.
Administrative Law Judge’s Decision and Rationale
The ALJ sided with the Petitioner, finding that MCIII had failed in its duty to enforce its own rules.
• Rejection of MCIII’s Defense: The ALJ determined that MCIII’s argument that the rules were unenforceable was “not a viable defense.” The decision explicitly stated that the association could have used provisions for notification and fines to enforce the rules but failed to do so.
• Evidence of Non-Enforcement: The hearing record demonstrated a clear failure by MCIII to act.
◦ The evidence was “undisputed” that the inoperable red truck had been in violation for over a year, yet MCIII only sent a single notice long after the complaint was filed.
◦ The ALJ noted that clearing even that one space would have improved the “tenuous parking situation.”
◦ The record contained no indication that MCIII had ever enforced the rules regarding the number of vehicles or the mandatory use of garages for primary parking.
◦ The only enforcement action cited, other than the single letter, was the towing of the Petitioner’s own vehicle.
• Conclusion of Law: Based on the evidence, the ALJ concluded that “MCIII failed to enforce CC&Rs and rules and regulations regarding parking.” The revision of the rules just before the hearing did not negate the past failure to enforce the rules that were in effect at the time of the Petitioner’s complaint.
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a binding order with two key provisions:
1. Prevailing Party: The Petitioner, John W. Gray, is officially deemed the prevailing party in the matter.
2. Reimbursement: MCIII is ordered to pay the Petitioner his filing fee of $500.00 within thirty (30) days of the order.
Study Guide – 19F-H1918004-REL
Study Guide: Gray v. Mesa Coronado III Condominium Association
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 19F-H1918004-REL, concerning a dispute over the enforcement of parking regulations. It includes a short-answer quiz, an answer key, essay questions for deeper analysis, and a glossary of key terms.
Quiz: Short-Answer Questions
Answer each of the following questions in 2-3 complete sentences, based entirely on the provided source document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues John W. Gray alleged in his petition filed with the Department on July 30, 2018?
3. According to the MCIII rules in effect at the time of the complaint, what were the primary restrictions placed on vehicle ownership and parking for residents?
4. Describe the key evidence the Petitioner presented at the hearing to substantiate his claims of widespread parking rule violations.
5. What was the Respondent’s primary defense for not enforcing the more restrictive parking rules that were in place at the time of the complaint?
6. How did the new rules, adopted on October 23, 2018, change the association’s approach to vehicle limits and garage use?
7. Explain the significance of the inoperable red truck to the Administrative Law Judge’s final decision.
8. What was the required standard of proof for the Petitioner in this case, and did the judge determine that he met it?
9. Prior to the hearing, what specific enforcement actions did MCIII take in response to the Petitioner’s documented complaints?
10. What was the final order issued by the Administrative Law Judge, and what was MCIII required to do?
Answer Key
1. The primary parties were John W. Gray, the Petitioner, who was a condominium owner in the MCIII development, and the Mesa Coronado III Condominium Association (MCIII), the Respondent and the governing unit owners’ association for the development. Mr. Gray initiated the legal action against the association for allegedly failing to enforce its rules.
2. The Petitioner’s two main allegations were that the association had failed to provide him with a copy of its management company agreement and that it refused to enforce its parking rules. He specifically alleged multiple units were violating rules regarding the number of vehicles and the presence of inoperable vehicles.
3. The rules in effect at the time of the complaint limited owners to a maximum of two cars per unit. The rules also “assigned” the garage as the designated parking spot for the first car and explicitly banned “inoperable” vehicles from the property.
4. The Petitioner presented credible evidence including photographs from multiple exhibits (6-16) showing numerous violations. He also testified based on his personal observations, identified specific units with three cars using garages for storage, and provided vehicle registration information obtained through a private investigator.
5. The Respondent defended its lack of enforcement by arguing that the existing restrictive rules were “almost impossible” to enforce without constant surveillance. The Community Manager also testified that she had received no prior complaints about parking from other residents.
6. The new rules, adopted October 23, 2018, removed the limit on the number of cars permitted per unit. However, they instituted a new requirement that owners must park their vehicles in their respective garages before using any common area parking spaces.
7. The inoperable red truck was significant because it had been parked in the same spot for over a year, serving as undisputed evidence of a long-standing violation. The judge noted that MCIII’s single letter to the owner, sent long after the violation began, demonstrated a clear failure to enforce its rules regarding inoperable vehicles.
8. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that his contentions were more probably true than not. The judge concluded that the Petitioner successfully met this burden of proof.
9. MCIII’s primary enforcement actions were to place the issue on its July 24, 2018, Board meeting agenda and to send one letter on July 23, 2018, to the owner of the unit associated with the inoperable red truck. The record also shows MCIII had previously enforced parking rules against the Petitioner himself by having his truck towed from a fire lane.
10. The judge ordered that the Petitioner be deemed the prevailing party in the case. The judge further ordered that MCIII must pay the Petitioner his filing fee of $500.00 within thirty days of the order.
Essay Questions
The following questions are designed to promote deeper analysis of the case. Formulate comprehensive responses based on the facts and arguments presented in the source document.
1. Analyze the Respondent’s argument that revising the parking rules made the Petitioner’s complaints “moot.” Based on the judge’s decision, evaluate the strength of this defense and explain why it was ultimately unsuccessful.
2. Discuss the concept of a condominium association’s duty to enforce its own rules and CC&Rs, using the specific examples of MCIII’s actions (and inactions) from the case. How did the association’s selective enforcement—such as towing the Petitioner’s vehicle but not others—factor into the case’s context?
3. Evaluate the evidence presented by both the Petitioner and the Respondent. Which party presented a more compelling case, and why? Support your analysis by citing specific exhibits, testimony, and documented observations mentioned in the decision.
4. Explore the timeline of events from the Petitioner’s first complaint in May 2018 to the judge’s decision in November 2018. How does this timeline illustrate the dispute’s escalation and the association’s response strategy?
5. The Administrative Law Judge found that MCIII’s argument of the rules being “unenforceable” was not a viable defense. What practical enforcement actions, short of 24/7 surveillance, could the association have taken according to the information provided in the hearing record?
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, it was Kay Abramsohn.
Burden of Proof
The legal obligation of a party in a trial to produce evidence that proves the claims they have made against the other party.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the guidelines for a planned community like a condominium. MCIII’s CC&Rs were effective January 12, 1999.
Common Elements
Also referred to as the “Common Area,” these are parts of the condominium property, such as the parking lot, available for use by all unit owners.
Community Manager
An employee of the management company (Curtiss Management) hired by the association to handle its affairs. In this case, the manager was Andrea Lacombe.
Evidentiary Hearing
A formal legal proceeding where parties present evidence (exhibits) and testimony to prove their case before a judge or hearing officer.
Inoperable Vehicle
A vehicle that cannot be operated. Both the old and new MCIII rules, as well as CC&R 4.14, prohibited storing such vehicles on the property outside of an enclosed garage.
A term used to describe an issue that is no longer in dispute or of practical significance. MCIII argued that its new rules made the Petitioner’s issues moot.
Petitioner
The party who initiates a legal action or files a petition. In this case, John W. Gray.
A map, drawn to scale, showing the divisions of a piece of land. The plat for MCIII showed there were 36 parking spaces in the lot.
Preponderance of the Evidence
The standard of proof required in this case. It is met if the proposition is more likely to be true than not true; it is a superior evidentiary weight that inclines an impartial mind to one side.
Prevailing Party
The party who is found to have won the legal case. The judge deemed the Petitioner to be the prevailing party.
Respondent
The party against whom a petition is filed; the defending party. In this case, the Mesa Coronado III Condominium Association.
Blog Post – 19F-H1918004-REL
He Fought the HOA Over Parking—and Won. Here Are the 5 Surprising Lessons from His Battle.
Introduction: The Familiar Frustration of HOA Parking
For anyone living in a condo, townhome, or planned community, the daily dance of parking is a familiar routine. It’s a world of limited spaces, confusing rules about guest parking, and the constant fear of a warning sticker or, worse, a tow truck. This shared frustration often simmers just below the surface of community life, where the rules established by a Homeowners Association (HOA) can feel arbitrary and inconsistently applied.
This post breaks down a real-life administrative court case where one resident, John W. Gray, took on his Condominium Association for its complete failure to enforce its own parking rules. Without getting lost in legal jargon, we will explore how a single, determined individual was able to hold his HOA accountable. This wasn’t just a simple disagreement; it was a formal challenge that went before a judge.
The official court decision in Gray’s favor offers powerful and surprising lessons for any homeowner, renter, or board member. This David vs. Goliath story is more than just a victory for one resident; it’s a practical guide filled with takeaways on how to effectively address community disputes and understand the true responsibilities of an HOA.
1. The ‘It’s Too Hard to Enforce’ Excuse Doesn’t Work
The association (MCIII) built its primary defense on the argument that its own parking rules were “almost impossible” to enforce. They claimed that the two-car limit per unit was too restrictive and would require constant, 24/7 monitoring and picture-taking, which was simply not feasible.
The administrative law judge completely rejected this excuse. The core lesson from the ruling is that an HOA cannot simply choose to ignore its governing documents because enforcement is inconvenient. The judge pointed out that the association had simpler tools at its disposal, such as issuing violation notices and levying fines as outlined in their rules, but failed to take even these basic steps.
The judge’s finding offers a powerful reality check for any board that feels overwhelmed by its own regulations:
MCIII’s argument that the rules were unenforceable is not a viable defense in this instance, as the rules contained many provisions that could have been noticed to the units regarding parking rules and their enforcement.
2. Meticulous Data is Your Strongest Weapon
John W. Gray didn’t just complain; he built an airtight case. His methodical approach to proving the association’s failure was a key factor in his success. The court record details the specific actions he took:
• He conducted personal observations and took photographs of the offending vehicles.
• He identified the specific units that had too many cars and were using their garages for storage instead of parking.
• He hired a private investigator to obtain vehicle registration information to definitively link cars to specific units.
The judge found this evidence to be “credible and convincing.” Gray’s detailed documentation painted a clear picture of the problem’s scale. According to his calculations, just 12 of the community’s 33 units were monopolizing 27 parking spaces, leaving very few for the remaining 21 units. This takeaway is clear: a well-documented, fact-based complaint is infinitely more powerful than anecdotal grievances.
3. Changing the Rules Doesn’t Erase Past Failures
In response to Gray’s formal complaint, the HOA Board took a strategic but ultimately unsuccessful step. Just days before the scheduled hearing, the Board reviewed and adopted a new set of parking rules. These new rules conveniently removed the two-car limit that the association had claimed was unenforceable.
The association then argued that this rule change made the petitioner’s original complaint “moot,” or irrelevant. They essentially claimed that since the rule he was complaining about no longer existed, there was no longer a case to be heard.
This strategy failed because the judge ruled on the HOA’s past failure to enforce the rules that were in effect at the time of the complaint. This is a crucial lesson in accountability. An organization cannot escape responsibility for its prior negligence simply by changing the rules at the last minute. The failure to act had already occurred, and the consequences of that failure were the basis of the lawsuit.
4. Ignoring Small Violations Can Create a Major Crisis
Nowhere was the HOA’s failure more obvious than in the case of a single inoperable red truck. The vehicle had been parked in the same spot for over a year, in clear violation of the rules prohibiting the storage of inoperable vehicles on the property.
Despite this long-term, visible violation, the hearing record shows the HOA’s response was both delayed and minimal. They sent only one letter to the unit owner about the truck, and this action was taken “long after” the violation began and only after Gray had formally complained.
The judge’s observation on this single vehicle underscores the wider impact of the board’s inaction:
Even the clearing of just one more space would have made the tenuous parking situation better.
The red truck was a symptom of a much larger disease. The failure to address one obvious, easily-proven violation demonstrated a systemic failure to manage the community’s shared resources, which directly contributed to the parking crisis and the disproportionate use of spaces by a few residents.
5. Enforcement Must Be Fair, Not Just Convenient
Perhaps the most telling detail from the hearing record was the apparent double standard in the HOA’s enforcement actions. The record explicitly mentions only two enforcement actions the association had taken regarding parking:
• Towing the petitioner’s own truck on one occasion for parking in a fire lane.
• Sending a single, very late letter about the red truck that had been parked for over a year.
The hearing record is devastatingly clear on this point. The only enforcement actions the board could point to were punitive or reactive: towing the truck of the very resident demanding action, and sending a single, belated letter about a year-old violation after he had filed a formal complaint. This wasn’t just inconsistent enforcement; it was a textbook case of selective enforcement that targeted the complainant while ignoring the systemic problem.
For an HOA’s authority to be respected and legally defensible, its rules must be applied fairly and consistently to all residents, not just when it is convenient or aimed at a perceived nuisance.
Conclusion: A Win for the Power of One
The judge’s order was a decisive victory for resident rights, affirming that an HOA’s duty to enforce its own rules is not optional. While the association was ordered to repay his $500 filing fee, the real prize was the validation that one resident, armed with credible evidence, can successfully hold a board accountable to the entire community. This case proves that meticulous documentation, persistence, and a refusal to be ignored are the great equalizers in community governance. It makes you wonder: what ‘unenforceable’ rules in your community are just waiting for a champion to demand they be followed?
Case Participants
Petitioner Side
John W. Gray(petitioner) Appeared on his own behalf
Respondent Side
Austin Baillio(attorney) Maxwell & Morgan PC Represented Mesa Coronado III Condominium Association
Andrea Lacombe(community manager) Curtiss Management Testified for Respondent
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(administrative staff) Transmitted decision electronically
The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.
Petitioner alleged that the HOA refused to enforce parking rules regarding vehicle limits, requiring use of garages for first cars, and banning inoperable or commercial vehicles, despite written complaints. The ALJ found the HOA failed to enforce these rules or issue proper notices/fines.
Orders: MCIII ordered to pay Petitioner his filing fee of $500.00 within thirty days of the Order.
Briefing Document: Gray v. Mesa Coronado III Condominium Association (Case No. 19F-H1918004-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge Decision in the case of John W. Gray (Petitioner) versus the Mesa Coronado III Condominium Association (MCIII, Respondent). The central issue was MCIII’s failure to enforce its own Covenants, Conditions, and Restrictions (CC&Rs) and community rules regarding vehicle parking.
The Petitioner, Mr. Gray, presented credible and convincing evidence of widespread, ongoing parking violations by multiple residents, including exceeding vehicle limits, failing to use garages for primary parking, and the long-term storage of an inoperable vehicle in a common area parking space. The Respondent, MCIII, argued that the rules were difficult to enforce and that it had taken some action, including revising the rules shortly before the hearing.
The Administrative Law Judge (ALJ) ultimately rejected MCIII’s defense, concluding that the association had demonstrably failed to enforce its governing documents. The ALJ found that MCIII had viable enforcement options, such as issuing notices and fines, which it did not utilize. The final order deemed the Petitioner the prevailing party and required MCIII to reimburse his $500 filing fee.
Case Overview
• Parties Involved:
◦ Petitioner: John W. Gray, owner of Unit 122 in the Mesa Coronado III Condominium development.
◦ Respondent: Mesa Coronado III Condominium Association (MCIII), the unit owners’ association for the 33-unit development.
• Adjudicating Body: The Office of Administrative Hearings, following a referral from the Arizona Department of Real Estate.
• Hearing Date: October 29, 2018.
• Decision Date: November 30, 2018.
• Core Allegation: The Petitioner alleged that MCIII violated its own Rules, Regulations, and CC&Rs (specifically Articles 4.12, 4.13, and 4.14) by refusing to enforce parking rules despite receiving written complaints.
Background and Timeline of the Dispute
The conflict centered on parking within the MCIII development, which has 36 parking spaces for 33 units, with spaces being “open” and not assigned to specific units (with one exception).
• Pre-existing Rules (Adopted Jan. 2002):
◦ Owners were limited to two cars per unit.
◦ The garage was considered the “assigned” parking for the first car.
◦ Inoperable vehicles were banned from the property.
◦ A system of warnings and fines was in place for rule violations.
• May 17, 2018: Petitioner Gray submitted a formal written complaint to MCIII, identifying at least eight units in violation of parking rules. His complaint specified:
◦ Units with three cars were not using their garages for parking, instead using them for storage.
◦ An inoperable red truck had been stationary in the same parking spot for over a year.
◦ A commercial truck was present containing what he believed to be hazardous pool chemicals.
• MCIII’s Initial Response: The association acknowledged a “history” with the parking situation and stated the Board would review the rules for revision. MCIII noted it would investigate the red truck and also accused the Petitioner of regularly parking his own truck in a fire lane.
• July 16, 2018: The Petitioner sent a follow-up notification regarding the continuing violations.
• MCIII’s Second Response: The association informed the Petitioner that the issue would be on the agenda for the July 24, 2018 Board meeting and again reminded him of his own alleged fire lane parking violations.
• July 23, 2018: MCIII sent a notice to the owner of the unit associated with the inoperable red truck, informing them of the rules violation.
• July 30, 2018: The Petitioner filed his formal petition with the Arizona Department of Real Estate.
• October 23, 2018: Days before the hearing, the MCIII Board adopted new parking rules.
Petitioner’s Case and Evidence (John W. Gray)
The Petitioner built a detailed case demonstrating a pattern of non-enforcement by MCIII. The ALJ found his evidence to be “credible and convincing.”
• Specific Violations Alleged:
◦ Excess Vehicles: Multiple units possessed more than the two-vehicle limit.
◦ Garage Misuse: Residents with multiple cars were using common area parking spaces while their garages were used for storage.
◦ Inoperable Vehicle: A red truck remained parked and inoperable in one space for over a year, in direct violation of CC&R 4.14.
• Evidence Presented at Hearing:
◦ Photographs: A series of exhibits (6 through 16) contained photographs documenting the various offending vehicles.
◦ Private Investigation: The Petitioner hired a private investigator to obtain vehicle registration information to link specific vehicles to their owners and units (Exhibit 17).
◦ Quantitative Analysis: The Petitioner calculated that just 12 units were occupying 27 common area parking spaces, leaving very few spaces for the remaining 21 units.
◦ Written Correspondence: Copies of his complaints to MCIII were submitted, demonstrating that the association was put on notice of the violations.
Respondent’s Defense and Actions (MCIII)
The association’s defense centered on the difficulty of enforcement and subsequent actions taken after the Petitioner’s complaint.
• Core Arguments:
◦ Unenforceability: MCIII asserted that it was “almost impossible” to enforce the existing restrictive rules, as it would require constant 24/7 monitoring.
◦ Lack of Prior Complaints: The Respondent claimed it had received no complaints about parking prior to Mr. Gray’s.
◦ Issue is Moot: MCIII argued that its recent revision of the parking rules rendered the Petitioner’s complaint moot.
• Actions Taken by MCIII:
◦ Rule Revision: At the October 23, 2018 Board meeting, MCIII adopted new rules that eliminated the two-car limit but maintained the requirement for residents to use their garage first before occupying common area spaces. The ban on inoperable and commercial vehicles was also kept.
◦ Enforcement Against Petitioner: The Respondent noted that it had previously taken enforcement action by having the Petitioner’s own truck towed for parking in a fire lane.
◦ Notice Regarding Red Truck: MCIII provided evidence that it sent one letter on July 23, 2018, regarding the inoperable red truck.
◦ Towing Contract: The association stated it had recently contracted with Shaffer Towing for towing services.
◦ Community Manager Patrols: The “Community Manager,” Andrea Lacombe, testified that she drove through the property approximately twice a month looking for violations.
Governing Rules and CC&Rs
The decision rested on the specific language of the association’s governing documents in effect at the time of the complaint.
Document
Article/Rule
Provision
Rules & Regulations (Jan 2002)
Rule 3
Limits owners to two cars per unit and “assigns” the garage as parking for the first car.
CC&Rs (Jan 1999)
Art. 4.12
Prohibits the parking of commercial vehicles, RVs, boats, trailers, etc., on any part of the condominium outside of an enclosed garage.
CC&Rs (Jan 1999)
Art. 4.13
States that no parking space may be used for storage or any purpose other than parking of Family Vehicles. Grants the Board the right to assign spaces.
CC&Rs (Jan 1999)
Art. 4.14
Prohibits the storage of inoperable vehicles on any portion of the condominium other than within enclosed garages. Grants the Board the right to have violating vehicles towed.
Administrative Law Judge’s Decision and Rationale
The ALJ sided with the Petitioner, finding that MCIII had failed in its duty to enforce its own rules.
• Rejection of MCIII’s Defense: The ALJ determined that MCIII’s argument that the rules were unenforceable was “not a viable defense.” The decision explicitly stated that the association could have used provisions for notification and fines to enforce the rules but failed to do so.
• Evidence of Non-Enforcement: The hearing record demonstrated a clear failure by MCIII to act.
◦ The evidence was “undisputed” that the inoperable red truck had been in violation for over a year, yet MCIII only sent a single notice long after the complaint was filed.
◦ The ALJ noted that clearing even that one space would have improved the “tenuous parking situation.”
◦ The record contained no indication that MCIII had ever enforced the rules regarding the number of vehicles or the mandatory use of garages for primary parking.
◦ The only enforcement action cited, other than the single letter, was the towing of the Petitioner’s own vehicle.
• Conclusion of Law: Based on the evidence, the ALJ concluded that “MCIII failed to enforce CC&Rs and rules and regulations regarding parking.” The revision of the rules just before the hearing did not negate the past failure to enforce the rules that were in effect at the time of the Petitioner’s complaint.
Final Order
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a binding order with two key provisions:
1. Prevailing Party: The Petitioner, John W. Gray, is officially deemed the prevailing party in the matter.
2. Reimbursement: MCIII is ordered to pay the Petitioner his filing fee of $500.00 within thirty (30) days of the order.
Study Guide – 19F-H1918004-REL
Study Guide: Gray v. Mesa Coronado III Condominium Association
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 19F-H1918004-REL, concerning a dispute over the enforcement of parking regulations. It includes a short-answer quiz, an answer key, essay questions for deeper analysis, and a glossary of key terms.
Quiz: Short-Answer Questions
Answer each of the following questions in 2-3 complete sentences, based entirely on the provided source document.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What were the two main issues John W. Gray alleged in his petition filed with the Department on July 30, 2018?
3. According to the MCIII rules in effect at the time of the complaint, what were the primary restrictions placed on vehicle ownership and parking for residents?
4. Describe the key evidence the Petitioner presented at the hearing to substantiate his claims of widespread parking rule violations.
5. What was the Respondent’s primary defense for not enforcing the more restrictive parking rules that were in place at the time of the complaint?
6. How did the new rules, adopted on October 23, 2018, change the association’s approach to vehicle limits and garage use?
7. Explain the significance of the inoperable red truck to the Administrative Law Judge’s final decision.
8. What was the required standard of proof for the Petitioner in this case, and did the judge determine that he met it?
9. Prior to the hearing, what specific enforcement actions did MCIII take in response to the Petitioner’s documented complaints?
10. What was the final order issued by the Administrative Law Judge, and what was MCIII required to do?
Answer Key
1. The primary parties were John W. Gray, the Petitioner, who was a condominium owner in the MCIII development, and the Mesa Coronado III Condominium Association (MCIII), the Respondent and the governing unit owners’ association for the development. Mr. Gray initiated the legal action against the association for allegedly failing to enforce its rules.
2. The Petitioner’s two main allegations were that the association had failed to provide him with a copy of its management company agreement and that it refused to enforce its parking rules. He specifically alleged multiple units were violating rules regarding the number of vehicles and the presence of inoperable vehicles.
3. The rules in effect at the time of the complaint limited owners to a maximum of two cars per unit. The rules also “assigned” the garage as the designated parking spot for the first car and explicitly banned “inoperable” vehicles from the property.
4. The Petitioner presented credible evidence including photographs from multiple exhibits (6-16) showing numerous violations. He also testified based on his personal observations, identified specific units with three cars using garages for storage, and provided vehicle registration information obtained through a private investigator.
5. The Respondent defended its lack of enforcement by arguing that the existing restrictive rules were “almost impossible” to enforce without constant surveillance. The Community Manager also testified that she had received no prior complaints about parking from other residents.
6. The new rules, adopted October 23, 2018, removed the limit on the number of cars permitted per unit. However, they instituted a new requirement that owners must park their vehicles in their respective garages before using any common area parking spaces.
7. The inoperable red truck was significant because it had been parked in the same spot for over a year, serving as undisputed evidence of a long-standing violation. The judge noted that MCIII’s single letter to the owner, sent long after the violation began, demonstrated a clear failure to enforce its rules regarding inoperable vehicles.
8. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that his contentions were more probably true than not. The judge concluded that the Petitioner successfully met this burden of proof.
9. MCIII’s primary enforcement actions were to place the issue on its July 24, 2018, Board meeting agenda and to send one letter on July 23, 2018, to the owner of the unit associated with the inoperable red truck. The record also shows MCIII had previously enforced parking rules against the Petitioner himself by having his truck towed from a fire lane.
10. The judge ordered that the Petitioner be deemed the prevailing party in the case. The judge further ordered that MCIII must pay the Petitioner his filing fee of $500.00 within thirty days of the order.
Essay Questions
The following questions are designed to promote deeper analysis of the case. Formulate comprehensive responses based on the facts and arguments presented in the source document.
1. Analyze the Respondent’s argument that revising the parking rules made the Petitioner’s complaints “moot.” Based on the judge’s decision, evaluate the strength of this defense and explain why it was ultimately unsuccessful.
2. Discuss the concept of a condominium association’s duty to enforce its own rules and CC&Rs, using the specific examples of MCIII’s actions (and inactions) from the case. How did the association’s selective enforcement—such as towing the Petitioner’s vehicle but not others—factor into the case’s context?
3. Evaluate the evidence presented by both the Petitioner and the Respondent. Which party presented a more compelling case, and why? Support your analysis by citing specific exhibits, testimony, and documented observations mentioned in the decision.
4. Explore the timeline of events from the Petitioner’s first complaint in May 2018 to the judge’s decision in November 2018. How does this timeline illustrate the dispute’s escalation and the association’s response strategy?
5. The Administrative Law Judge found that MCIII’s argument of the rules being “unenforceable” was not a viable defense. What practical enforcement actions, short of 24/7 surveillance, could the association have taken according to the information provided in the hearing record?
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, it was Kay Abramsohn.
Burden of Proof
The legal obligation of a party in a trial to produce evidence that proves the claims they have made against the other party.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the guidelines for a planned community like a condominium. MCIII’s CC&Rs were effective January 12, 1999.
Common Elements
Also referred to as the “Common Area,” these are parts of the condominium property, such as the parking lot, available for use by all unit owners.
Community Manager
An employee of the management company (Curtiss Management) hired by the association to handle its affairs. In this case, the manager was Andrea Lacombe.
Evidentiary Hearing
A formal legal proceeding where parties present evidence (exhibits) and testimony to prove their case before a judge or hearing officer.
Inoperable Vehicle
A vehicle that cannot be operated. Both the old and new MCIII rules, as well as CC&R 4.14, prohibited storing such vehicles on the property outside of an enclosed garage.
A term used to describe an issue that is no longer in dispute or of practical significance. MCIII argued that its new rules made the Petitioner’s issues moot.
Petitioner
The party who initiates a legal action or files a petition. In this case, John W. Gray.
A map, drawn to scale, showing the divisions of a piece of land. The plat for MCIII showed there were 36 parking spaces in the lot.
Preponderance of the Evidence
The standard of proof required in this case. It is met if the proposition is more likely to be true than not true; it is a superior evidentiary weight that inclines an impartial mind to one side.
Prevailing Party
The party who is found to have won the legal case. The judge deemed the Petitioner to be the prevailing party.
Respondent
The party against whom a petition is filed; the defending party. In this case, the Mesa Coronado III Condominium Association.
Blog Post – 19F-H1918004-REL
He Fought the HOA Over Parking—and Won. Here Are the 5 Surprising Lessons from His Battle.
Introduction: The Familiar Frustration of HOA Parking
For anyone living in a condo, townhome, or planned community, the daily dance of parking is a familiar routine. It’s a world of limited spaces, confusing rules about guest parking, and the constant fear of a warning sticker or, worse, a tow truck. This shared frustration often simmers just below the surface of community life, where the rules established by a Homeowners Association (HOA) can feel arbitrary and inconsistently applied.
This post breaks down a real-life administrative court case where one resident, John W. Gray, took on his Condominium Association for its complete failure to enforce its own parking rules. Without getting lost in legal jargon, we will explore how a single, determined individual was able to hold his HOA accountable. This wasn’t just a simple disagreement; it was a formal challenge that went before a judge.
The official court decision in Gray’s favor offers powerful and surprising lessons for any homeowner, renter, or board member. This David vs. Goliath story is more than just a victory for one resident; it’s a practical guide filled with takeaways on how to effectively address community disputes and understand the true responsibilities of an HOA.
1. The ‘It’s Too Hard to Enforce’ Excuse Doesn’t Work
The association (MCIII) built its primary defense on the argument that its own parking rules were “almost impossible” to enforce. They claimed that the two-car limit per unit was too restrictive and would require constant, 24/7 monitoring and picture-taking, which was simply not feasible.
The administrative law judge completely rejected this excuse. The core lesson from the ruling is that an HOA cannot simply choose to ignore its governing documents because enforcement is inconvenient. The judge pointed out that the association had simpler tools at its disposal, such as issuing violation notices and levying fines as outlined in their rules, but failed to take even these basic steps.
The judge’s finding offers a powerful reality check for any board that feels overwhelmed by its own regulations:
MCIII’s argument that the rules were unenforceable is not a viable defense in this instance, as the rules contained many provisions that could have been noticed to the units regarding parking rules and their enforcement.
2. Meticulous Data is Your Strongest Weapon
John W. Gray didn’t just complain; he built an airtight case. His methodical approach to proving the association’s failure was a key factor in his success. The court record details the specific actions he took:
• He conducted personal observations and took photographs of the offending vehicles.
• He identified the specific units that had too many cars and were using their garages for storage instead of parking.
• He hired a private investigator to obtain vehicle registration information to definitively link cars to specific units.
The judge found this evidence to be “credible and convincing.” Gray’s detailed documentation painted a clear picture of the problem’s scale. According to his calculations, just 12 of the community’s 33 units were monopolizing 27 parking spaces, leaving very few for the remaining 21 units. This takeaway is clear: a well-documented, fact-based complaint is infinitely more powerful than anecdotal grievances.
3. Changing the Rules Doesn’t Erase Past Failures
In response to Gray’s formal complaint, the HOA Board took a strategic but ultimately unsuccessful step. Just days before the scheduled hearing, the Board reviewed and adopted a new set of parking rules. These new rules conveniently removed the two-car limit that the association had claimed was unenforceable.
The association then argued that this rule change made the petitioner’s original complaint “moot,” or irrelevant. They essentially claimed that since the rule he was complaining about no longer existed, there was no longer a case to be heard.
This strategy failed because the judge ruled on the HOA’s past failure to enforce the rules that were in effect at the time of the complaint. This is a crucial lesson in accountability. An organization cannot escape responsibility for its prior negligence simply by changing the rules at the last minute. The failure to act had already occurred, and the consequences of that failure were the basis of the lawsuit.
4. Ignoring Small Violations Can Create a Major Crisis
Nowhere was the HOA’s failure more obvious than in the case of a single inoperable red truck. The vehicle had been parked in the same spot for over a year, in clear violation of the rules prohibiting the storage of inoperable vehicles on the property.
Despite this long-term, visible violation, the hearing record shows the HOA’s response was both delayed and minimal. They sent only one letter to the unit owner about the truck, and this action was taken “long after” the violation began and only after Gray had formally complained.
The judge’s observation on this single vehicle underscores the wider impact of the board’s inaction:
Even the clearing of just one more space would have made the tenuous parking situation better.
The red truck was a symptom of a much larger disease. The failure to address one obvious, easily-proven violation demonstrated a systemic failure to manage the community’s shared resources, which directly contributed to the parking crisis and the disproportionate use of spaces by a few residents.
5. Enforcement Must Be Fair, Not Just Convenient
Perhaps the most telling detail from the hearing record was the apparent double standard in the HOA’s enforcement actions. The record explicitly mentions only two enforcement actions the association had taken regarding parking:
• Towing the petitioner’s own truck on one occasion for parking in a fire lane.
• Sending a single, very late letter about the red truck that had been parked for over a year.
The hearing record is devastatingly clear on this point. The only enforcement actions the board could point to were punitive or reactive: towing the truck of the very resident demanding action, and sending a single, belated letter about a year-old violation after he had filed a formal complaint. This wasn’t just inconsistent enforcement; it was a textbook case of selective enforcement that targeted the complainant while ignoring the systemic problem.
For an HOA’s authority to be respected and legally defensible, its rules must be applied fairly and consistently to all residents, not just when it is convenient or aimed at a perceived nuisance.
Conclusion: A Win for the Power of One
The judge’s order was a decisive victory for resident rights, affirming that an HOA’s duty to enforce its own rules is not optional. While the association was ordered to repay his $500 filing fee, the real prize was the validation that one resident, armed with credible evidence, can successfully hold a board accountable to the entire community. This case proves that meticulous documentation, persistence, and a refusal to be ignored are the great equalizers in community governance. It makes you wonder: what ‘unenforceable’ rules in your community are just waiting for a champion to demand they be followed?
Case Participants
Petitioner Side
John W. Gray(petitioner) Appeared on his own behalf
Respondent Side
Austin Baillio(attorney) Maxwell & Morgan PC Represented Mesa Coronado III Condominium Association
Andrea Lacombe(community manager) Curtiss Management Testified for Respondent
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(administrative staff) Transmitted decision electronically
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 2025-10-09T03:33:00 (112.4 KB)
Briefing Doc – 18F-H1818050-REL
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 – 18F-H1818050-REL
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.
Blog Post – 18F-H1818050-REL
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
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 2026-01-23T17:24:56 (112.4 KB)
Briefing Doc – 18F-H1818050-REL
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 – 18F-H1818050-REL
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.
Blog Post – 18F-H1818050-REL
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
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 2025-10-09T03:32:41 (74.5 KB)
18F-H1818033-REL Decision – 655537.pdf
Uploaded 2025-10-09T03:32:42 (83.3 KB)
Briefing Doc – 18F-H1818033-REL
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 – 18F-H1818033-REL
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.
Blog Post – 18F-H1818033-REL
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18F-H1818033-REL
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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.
Based on 2 sources
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
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 2026-01-23T17:23:22 (74.5 KB)
18F-H1818033-REL Decision – 655537.pdf
Uploaded 2026-01-23T17:23:25 (83.3 KB)
Briefing Doc – 18F-H1818033-REL
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 – 18F-H1818033-REL
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.
Blog Post – 18F-H1818033-REL
Select all sources
642888.pdf
655537.pdf
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Loading
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.
Based on 2 sources
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
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.
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 – 18F-H1818028-REL
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.
Blog Post – 18F-H1818028-REL
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
