Tag Archives: A.R.S. § 33-1803

William P Lee vs. Greenlaw Townhouses Unit Two Homeowners Association

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Case Summary

Case ID 19F-H1918019-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-04-22
Administrative Law Judge Velva Moses-Thompson
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William P. Lee Counsel —
Respondent Greenlaw Townhouses Unit Two Homeowners Association Counsel Timothy D. Butterfield, Esq.

Alleged Violations

CC&Rs amendments 1, 2, & 3; Greenlaw Rules and Regulations; A.R.S. §§ 33-1803, 33-1809

Outcome Summary

The ALJ denied the petition after rehearing, concluding the Petitioner failed to prove by a preponderance of the evidence that the HOA violated its CC&Rs, controlling Rules and Regulations (revised July 2018), or relevant statutes (A.R.S. §§ 33-1803 and 1809) by banning parking on association streets and implementing a booting/towing contract.

Why this result: The Petitioner failed to meet the burden of proof to establish the alleged violations of community documents or A.R.S. statutes by a preponderance of the evidence.

Key Issues & Findings

Alleged violation of community documents and statutes regarding parking ban and vehicle booting/towing

Petitioner alleged the HOA violated its CC&Rs amendments 1, 2, and 3, and Rules and Regulations, by banning all parking on association streets and contracting for vehicle booting/towing. Petitioner also contested the validity of the 2018 revised Rules and Regulations due to improper notice and alleged violations of A.R.S. §§ 33-1803 and 1809.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 33-1809
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75

Analytics Highlights

Topics: HOA Rule Enforcement, Parking Restrictions, CC&Rs, Rules and Regulations, Towing/Booting, Notice Requirement
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 33-1809
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Powell v. Washburn, 211 Ariz. 553
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70

Video Overview

Audio Overview

Decision Documents

19F-H1918019-REL Decision – 703187.pdf

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19F-H1918019-REL Decision – 678471.pdf

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19F-H1918019-REL Decision – 678471.pdf

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19F-H1918019-REL Decision – 703187.pdf

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Administrative Hearing Briefing: William P. Lee v. Greenlaw Townhouses Unit Two

Executive Summary

This document analyzes the Administrative Law Judge Decision in case No. 19F-H1918019-REL-RHG, where Petitioner William P. Lee’s complaint against the Greenlaw Townhouses Unit Two Homeowners Association (Greenlaw) was denied. Mr. Lee, a homeowner, alleged that Greenlaw’s complete ban on street parking and its contract with a towing company to enforce the ban violated the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The Administrative Law Judge (ALJ) found that Mr. Lee failed to meet the required burden of proof. The central conclusion was that Greenlaw’s revised Rules and Regulations, effective July 2018, are the controlling authority and explicitly permit a total ban on street parking. The ALJ determined that the specific parking prohibitions detailed in the CC&R amendments—concerning fire lanes, snow removal, and abandoned vehicles—do not preclude the association from enacting a more comprehensive ban via its rules. Furthermore, the petitioner failed to provide sufficient evidence that Greenlaw had actually taken the alleged enforcement actions (booting or towing) against any member’s vehicle.

Case Overview

Detail

Information

Case Name

William P. Lee v. Greenlaw Townhouses Unit Two

Case Number

19F-H1918019-REL-RHG

Arizona Office of Administrative Hearings

Petitioner

William P. Lee (Homeowner)

Respondent

Greenlaw Townhouses Unit Two (Homeowners Association)

Hearing Date

April 1, 2019 (Rehearing)

Decision Date

April 22, 2019

Final Order

Petitioner’s petition is denied.

Presiding ALJ

Velva Moses-Thompson

Petitioner’s Core Allegations and Arguments

William P. Lee’s petition, filed on September 12, 2018, centered on the claim that Greenlaw acted outside its authority by banning all street parking and contracting with a towing company for enforcement. His arguments were:

• Violation of CC&Rs: The total parking ban directly contradicted CC&R Amendments 1, 2, and 3. Mr. Lee contended these amendments established an exhaustive list of permissible parking restrictions, limited to:

◦ Designated fire lanes (Amendment #1).

◦ Periods of snow removal (Amendment #2).

◦ Vehicles in an obvious state of disrepair for over 72 hours (Amendment #3).

• Invalidity of Revised Rules: Mr. Lee argued that the July 2018 revised Rules and Regulations, which contain the parking ban, were not valid or controlling due to improper notification.

◦ He contended that Greenlaw’s Bylaws (Article V, Section 1) required that such notices be delivered personally or by postal mail.

◦ He received notice only via a July 6, 2018 email, which he claimed did not clearly indicate that the rules had been substantively changed.

• Improper Motive: Mr. Lee contended that “the only reason that the Association banned parking was to please Barbara, a board member who did not want anyone to park behind her property.”

Respondent’s Defense

Greenlaw Townhouses Unit Two asserted that its actions were proper and within the scope of its authority as an HOA. Its defense included the following points:

• Controlling Authority: Greenlaw maintained that its revised Rules and Regulations, effective July 2018, were the controlling documents governing parking.

• Notice Protocol: The association contended that the Bylaw provision requiring personal or postal mail notice applies only to notices mandated by statute or the CC&Rs. Greenlaw argued there is no such requirement for providing notice of amendments to the Rules and Regulations.

• Sufficient Notice: Greenlaw asserted that Mr. Lee received actual notice of the revised rules via the email sent on July 6, 2018.

Analysis of Key Governing Documents

The case revolved around the interpretation of and interplay between several of Greenlaw’s governing documents.

Document

Key Provision / Content

Relevance to Case

CC&R Amendments 1, 2, & 3

These amendments, added to Article II (Permitted Uses), establish specific, conditional parking prohibitions related to fire lanes, snow removal, and abandoned vehicles.

The petitioner argued these amendments represented the only circumstances under which parking could be banned. The ALJ found they were not an exhaustive list.

Bylaws, Article V, Section 1

“Notices to directors and lot owners shall be in writing and delivered personally or mailed to the directors or lot owners at their addresses appearing on the books of the corporation.”

The petitioner cited this to argue that the email notice for the revised rules was improper, thus invalidating the rules. The ALJ sided with the Respondent’s interpretation.

Rules and Regulations (July 2018), Section 8

“Parking is not allowed on any association street or alleyway at any time… cars parked in violation may be booted and/or towed by a contracted independent towing company.” The rule specifies that the streets (Eva, Heidi, Jeffrey Loops) are private and owned by the HOA.

This document contains the explicit, total parking ban at the heart of the dispute. The ALJ found this rule to be the valid and controlling authority.

Administrative Law Judge’s Findings and Conclusions

The ALJ’s decision was based on a comprehensive review of the evidence and legal standards, ultimately concluding that the petitioner failed to prove his case.

Burden of Proof

The decision established that Mr. Lee bore the burden of proof “to establish that Greenlaw violated amendments 1, 2, and 3 of the CC&Rs, and the Greenlaw Rules and Regulations by a preponderance of the evidence.” A preponderance of the evidence is defined as proof that convinces the trier of fact a contention is “more probably true than not.”

Key Conclusions of Law

1. Validity of the 2018 Rules: The ALJ concluded that “the weight of the evidence presented at hearing shows that Greenlaw’s Rules and Regulations were revised effective July 2018 and are the controlling Rules and Regulations of Greenlaw.” Mr. Lee failed to establish that any prior version remained in effect.

2. Scope of CC&R Amendments: The decision found that the CC&R amendments only “provide specific scenarios in which parking on the streets is banned.” They do not restrict the association from implementing a broader ban through its Rules and Regulations. Therefore, the total ban did not violate the CC&Rs.

3. No Violation of Rules: Because the July 2018 rules were found to be controlling, and they explicitly authorize a total parking ban, the ALJ concluded that Greenlaw’s decision did not violate its own Rules and Regulations.

4. Insufficient Evidence of Enforcement: A critical failure in the petitioner’s case was the lack of evidence.

◦ The decision notes, “Mr. Lee provided no evidence that Greenlaw booted or towed any of the vehicles belonging to Greenlaw members.”

◦ His testimony about observing a booted jeep was dismissed as insufficient, as he “did not know who owned the jeep, nor who was responsible for booting the jeep.” The Greenlaw manager’s subsequent comment was not found to be an admission of responsibility.

◦ Mr. Lee did not allege that any of his own vehicles had been booted or towed.

5. No Statutory Violation: The judge found that Mr. Lee failed to establish any violation of Arizona Revised Statutes §§ 33-1803 and 33-1809.

Final Order and Implications

Based on these findings, the Administrative Law Judge issued a final, binding order.

• Order: “IT IS ORDERED that Petitioners’ petition is denied.”

• Appeal Process: As the order resulted from a rehearing, it is binding on the parties. Any party wishing to appeal must seek judicial review in the superior court within thirty-five days from the date the order was served.

Study Guide: Lee v. Greenlaw Townhouses Unit Two (Case No. 19F-H1918019-REL-RHG)

This guide provides a comprehensive review of the administrative law case between William P. Lee and the Greenlaw Townhouses Unit Two Homeowners Association. It covers the central conflict, the arguments presented by both parties, the key legal documents involved, and the final decision rendered by the Administrative Law Judge.

Case Overview

This case centers on a dispute between a homeowner, William P. Lee, and his Homeowners Association (HOA), Greenlaw Townhouses Unit Two. Mr. Lee filed a petition alleging that the HOA’s decision to ban all parking on association streets and contract with a towing company violated the community’s governing documents. The matter was decided by an Administrative Law Judge following a rehearing on April 1, 2019.

Key Parties and Roles

Party/Role

Name / Entity

Description

Petitioner

William P. Lee

A homeowner in Greenlaw Unit Two and member of the HOA who filed the petition against the association.

Respondent

Greenlaw Townhouses Unit Two

The Homeowners Association (HOA) responsible for governing the community, against which the petition was filed.

Legal Counsel

Timothy D. Butterfield, Esq.

Appeared on behalf of the Respondent, Greenlaw Townhouses.

Adjudicator

Velva Moses-Thompson

The Administrative Law Judge from the Office of Administrative Hearings who presided over the rehearing and issued the decision.

Timeline of Key Events

June 16, 1986

Greenlaw Bylaws were recorded at the Coconino County Recorder.

July 2, 1999

Greenlaw Declaration of Covenants, Conditions, and Restrictions (CC&Rs) was recorded.

July 6, 2018

Greenlaw sent an email to members with an attachment containing the revised Rules and Regulations, effective July 2018.

September 12, 2018

William P. Lee filed a petition with the Arizona Department of Real Estate.

December 13, 2018

The original hearing on the petition was conducted.

February 11, 2019

The Department of Real Estate issued an order for a rehearing.

April 1, 2019

The rehearing was held at the Office of Administrative Hearings.

April 22, 2019

The Administrative Law Judge issued the final decision, denying the petitioner’s petition.

The Central Conflict: Parking Regulations

The core of the dispute was Mr. Lee’s allegation that Greenlaw’s comprehensive ban on street parking, as stated in its revised 2018 Rules and Regulations, violated the more specific parking restrictions outlined in the community’s CC&Rs. The validity of the 2018 Rules and Regulations, and the method by which they were distributed to homeowners, was also a key point of contention.

• Violation of CC&Rs: The general ban on street parking violated Amendments 1, 2, and 3 of the CC&Rs, which only banned parking in specific situations (fire lanes, snow removal, abandoned vehicles).

• Improper Notice: Greenlaw failed to provide proper notice of the revised Rules and Regulations. Mr. Lee argued that the HOA’s Bylaws (Article V, Section 1) required notice to be delivered personally or by postal mail, not by email.

• Unclear Communication: The email sent on July 6, 2018, did not clearly state that the rules had been recently changed.

• Invalidity of New Rules: Due to the improper notice, Mr. Lee contended that the 2018 revised Rules and Regulations were not valid or controlling.

• Improper Motivation: Mr. Lee alleged the only reason for the ban was to appease a board member named Barbara who did not want anyone parking behind her property.

• Evidence of Enforcement: Mr. Lee testified that he observed a jeep being booted in a driveway and that the Greenlaw manager’s response implied the HOA’s contracted towing company could boot vehicles in violation.

• Notice Was Sufficient: Greenlaw contended that the Bylaw’s requirement for mail or personal delivery only applied to notices mandated by statute or the CC&Rs.

• No Notice Requirement: The HOA argued that it was not required by law or the CC&Rs to provide homeowners with notice of an amendment to the Rules and Regulations.

• Notice Was Received: Greenlaw asserted that Mr. Lee did, in fact, receive notice of the revised rules via the email sent on July 6, 2018.

• No Proof of Harm: Greenlaw pointed out that Mr. Lee provided no evidence that any vehicles belonging to Greenlaw members had been booted or towed by the association, nor did he allege that one of his own vehicles had been affected.

Governing Documents and Legal Principles

• Amendment #1: Bans parking in designated fire lanes.

• Amendment #2: Bans parking on subdivision roads during snow removal periods.

• Amendment #3: Allows for the towing of vehicles parked at the curb in an obvious state of disrepair for over 72 hours.

• Article V, Section 1: States that notices to directors and lot owners “shall be in writing and delivered personally or mailed.”

• Section 8: Explicitly states, “Parking is not allowed on any association street or alleyway at any time.” It identifies the streets (Eva, Heidi, and Jeffrey Loops) as “Private Fire Access Lanes” owned by the HOA and states that vehicles in violation may be booted and/or towed.

• The petitioner, Mr. Lee, bore the burden of proof to establish his claims by a preponderance of the evidence.

• The source defines preponderance of the evidence as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

The Judge’s Decision and Rationale

The Administrative Law Judge, Velva Moses-Thompson, denied Mr. Lee’s petition. The key conclusions of law were:

1. Controlling Document: The 2018 revised Rules and Regulations were found to be the valid and controlling rules for the Greenlaw HOA.

2. Authority to Ban Parking: The 2018 Rules and Regulations explicitly allow the association to ban all parking on its streets and to enforce this rule by booting or towing vehicles.

3. No Violation of CC&Rs: The judge concluded that Mr. Lee failed to prove that the general parking ban violated the specific, situational bans outlined in CC&R Amendments 1, 2, and 3. The amendments did not preclude the HOA from enacting a broader rule.

4. Failure to Meet Burden of Proof: Mr. Lee did not establish by a preponderance of the evidence that Greenlaw’s actions violated either the CC&Rs or the Rules and Regulations.

5. Insufficient Evidence of Enforcement: Mr. Lee failed to provide any evidence that Greenlaw was actually responsible for booting the jeep he observed. His testimony was not sufficient to prove the HOA had taken action against any member.

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Quiz: Test Your Understanding

Answer the following questions in 2-3 sentences based on the information in the study guide.

1. What was the central allegation in William P. Lee’s petition against the Greenlaw HOA?

2. What three specific scenarios for parking restrictions are outlined in Amendments 1, 2, and 3 of the Greenlaw CC&Rs?

3. On what grounds did Mr. Lee argue that the 2018 revised Rules and Regulations were not valid?

4. How did Greenlaw defend its use of email to distribute the revised Rules and Regulations to homeowners?

5. According to Section 8 of the revised Rules and Regulations, what are the potential consequences for parking on an association street?

6. What was the judge’s conclusion regarding the validity and authority of the 2018 revised Rules and Regulations?

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

8. Why did the judge find Mr. Lee’s testimony about a booted jeep to be insufficient evidence?

9. Did the judge find that Greenlaw’s general parking ban violated Amendments 1, 2, and 3 of the CC&Rs? Explain why or why not.

10. What was the final order issued by the Administrative Law Judge in this matter?

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Answer Key

1. Mr. Lee’s central allegation was that the Greenlaw HOA had violated its CC&Rs and Rules and Regulations. Specifically, he claimed the association’s decision to ban all parking on its streets and to contract with a company to boot vehicles was improper.

2. The CC&R amendments outline three specific parking restrictions. Amendment 1 bans parking in designated fire lanes, Amendment 2 bans parking on roads during snow removal, and Amendment 3 allows for the towing of abandoned vehicles in a state of disrepair for over 72 hours.

3. Mr. Lee argued the 2018 rules were invalid because he was not given proper notice. He contended that the HOA’s Bylaws required notice to be delivered personally or by postal mail, and that the email he received was not a valid method of distribution.

4. Greenlaw defended its use of email by arguing that the Bylaw’s requirement for personal or mail delivery only applied to notices that were required by statute or the CC&Rs. The HOA contended it was not required by law to provide notice for an amendment to its Rules and Regulations.

5. Section 8 states that cars parked in violation on an association street may be booted and/or towed by a contracted independent towing company. The rule identifies the streets as “Private Fire Access Lanes.”

6. The judge concluded that the Rules and Regulations revised in July 2018 were the controlling rules for Greenlaw. Furthermore, the judge found that these rules do allow the association to ban all parking on its streets and to tow or boot cars in violation.

7. A “preponderance of the evidence” is the standard of proof that convinces a judge that a contention is more probably true than not. In this case, the petitioner, William P. Lee, bore the burden of proving his claims by this standard.

8. The evidence was insufficient because Mr. Lee did not know who owned the jeep or who was responsible for booting it. There was no direct evidence provided that proved Greenlaw or its contractor was responsible for the action.

9. No, the judge did not find that the ban violated the CC&Rs. The judge reasoned that the amendments only provided specific scenarios where parking was banned and did not prevent the HOA from enacting a broader, more general parking ban in its Rules and Regulations.

10. The final order issued by the Administrative Law Judge was that the Petitioner’s (Mr. Lee’s) petition is denied.

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Essay Questions for Deeper Analysis

The following questions are for further reflection. No answers are provided.

1. Analyze the conflict between Greenlaw’s Bylaws (Article V, Section 1) regarding notice and its 2018 distribution of revised Rules and Regulations. Discuss both parties’ arguments and explain how the judge’s ultimate decision implies a resolution to this conflict.

2. Discuss the legal concept of “burden of proof” as it applies to this case. How did William P. Lee’s failure to meet the “preponderance of the evidence” standard affect the outcome of his claims regarding both the parking ban and the alleged booting/towing incidents?

3. Compare and contrast the parking restrictions detailed in the CC&R Amendments with the broader ban instituted in Section 8 of the 2018 Rules and Regulations. Explain why the existence of the specific amendments did not prevent the HOA from enacting a more general rule.

4. Evaluate the evidence presented by Mr. Lee. What were the strengths and weaknesses of his arguments and testimony, particularly concerning the booted jeep and the motivation behind the parking ban?

5. Imagine you are legal counsel for the Greenlaw HOA. Based on the arguments and outcome of this case, what advice would you give the Board of Directors regarding future amendments to its Rules and Regulations to avoid similar disputes?

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Glossary of Key Terms

• Administrative Law Judge (ALJ): An official who presides over hearings at administrative agencies. In this case, Velva Moses-Thompson served as the ALJ for the Office of Administrative Hearings.

• Affirmative Defenses: Arguments made by the respondent that, if proven, can defeat or mitigate the petitioner’s claim. The Respondent (Greenlaw) bears the burden to establish these defenses.

• Burden of Proof: The obligation of a party in a legal case to prove their allegations. In this case, Mr. Lee had the burden of proof to establish his claims.

• Bylaws: A set of rules adopted by an organization, such as an HOA, for governing its internal operations. Greenlaw’s bylaws addressed the method for providing notices to members.

• Covenants, Conditions, and Restrictions (CC&Rs): A set of rules governing the use of land in a planned community or subdivision. Owners agree to be bound by the CC&Rs.

• Homeowners Association (HOA): An organization in a planned community that makes and enforces rules for the properties and its residents. Greenlaw Townhouses Unit Two is the HOA in this case.

• Petitioner: The party who files a petition initiating a legal action. William P. Lee is the Petitioner.

• Preponderance of the Evidence: The standard of proof in which the trier of fact is convinced that a contention is “more probably true than not.” It is described as “the greater weight of the evidence.”

• Respondent: The party against whom a petition is filed; the party who must respond to the claims. Greenlaw Townhouses Unit Two is the Respondent.

• Rules and Regulations: A set of rules established by the HOA, in addition to the CC&Rs and Bylaws, that govern the day-to-day life and conduct within the community. The 2018 revised parking ban was located in Greenlaw’s Rules and Regulations.

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19F-H1918019-REL-RHG

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This document presents an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between William P. Lee, a homeowner, and Greenlaw Townhouses Unit Two, his Homeowners Association. The central issue revolved around the Greenlaw HOA’s implementation of a comprehensive ban on street parking and its contracting with a towing company to enforce the rule, which Mr. Lee contended violated the association’s governing documents, specifically amendments to the Covenants, Conditions, and Restrictions (CC&Rs), and the proper notification procedures for revised rules. The findings of fact detail the history of the parking rules, the homeowner’s receipt of the electronic notification of the revised rules, and Mr. Lee’s arguments that the association failed to use the required postal mail or personal delivery methods for notice. The Conclusions of Law determined that the controlling rules were the revised July 2018 Rules and Regulations and that Mr. Lee failed to prove by a preponderance of the evidence that the HOA violated either the CC&Rs or relevant Arizona statutes. Consequently, the Judge ordered that the petitioner’s petition be denied.

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • William P. Lee (petitioner)
    Greenlaw Townhouses Unit Two Homeowners Association member
    Testified on behalf of himself

Respondent Side

  • Mark K. Sahl (HOA attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Timothy D. Butterfield (HOA attorney)
    Greenlaw Townhouses Unit Two Homeowners Association
  • Barbara (board member)
    Greenlaw Townhouses Unit Two Homeowners Association
    Contended by Lee to be the reason for the parking ban

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Michelle Ruffo vs. Reflections in the Catalinas Condo Association

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Case Summary

Case ID 18F-H1818044-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-10-03
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michelle Ruffo Counsel —
Respondent Reflections in the Catalinas Condo Association Counsel Nathan Tennyson

Alleged Violations

A.R.S. §§ 33-1242, 33-1248, 33-1803(A), 33-1803(B), 33-1805; CC&Rs §§ 1.36, 1.38, 4.7, 2.8.3

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.

Why this result: Petitioner continually violated CC&R § 4.7 and failed to prove Respondent violated any CC&R or statute, particularly as A.R.S. § 33-1242 did not apply to disputes concerning the use of limited common elements.

Key Issues & Findings

HOA violation of CC&Rs and Statutes by imposing parking fines

Petitioner challenged the HOA's decision to assess continuous fines against her account totaling $2,544.00 for repeatedly parking in spaces that were not assigned to her unit 52, arguing the fines and enforcement lacked proper statutory process and violated CC&Rs. The ALJ found that Petitioner failed to meet her burden of proof and that the statute cited (A.R.S. § 33-1242) concerning property condition notices did not apply to this dispute regarding limited common elements (parking spaces).

Orders: Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1242
  • A.R.S. § 33-1803
  • CC&R § 4.7
  • CC&R § 2.8.3

Analytics Highlights

Topics: parking violation, fines, HOA enforcement, limited common elements, due process, Arizona Department of Real Estate
Additional Citations:

  • A.R.S. § 32-2199
  • A.R.S. § 33-1242
  • A.R.S. § 33-1248
  • A.R.S. § 33-1803
  • A.R.S. § 33-1805
  • A.R.S. § 12-349
  • CC&R § 4.7
  • CC&R § 2.8.3

Video Overview

Audio Overview

Decision Documents

18F-H1818044-REL Decision – 663567.pdf

Uploaded 2026-04-24T11:12:35 (270.9 KB)

18F-H1818044-REL Decision – 663567.pdf

Uploaded 2026-01-23T17:24:18 (270.9 KB)

Briefing Document: Ruffo v. Reflections in the Catalinas Condo Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in case number 18F-H1818044-REL, involving Petitioner Michelle Ruffo and Respondent Reflections in the Catalinas Condo Association. The core of the dispute centers on a series of fines levied by the Association against Ms. Ruffo for repeatedly parking in condominium parking spaces not assigned to her unit.

The Petitioner argued that she had informal written permission from other residents to use their spaces, that the Association’s notices of violation were procedurally flawed, that she was the victim of retaliatory harassment, and that her own assigned space was frequently occupied by others. The Respondent maintained that its actions were in strict accordance with the community’s Covenants, Conditions, and Restrictions (CC&Rs), which unambiguously require owners to use only their assigned parking spaces and outline a formal process for reallocating them, a process the Petitioner did not follow.

The ALJ ultimately denied the petition, finding that Ms. Ruffo failed to meet her burden of proof. The decision concluded that the Association acted within its rights, that its enforcement actions were consistent with its governing documents, and that the Petitioner’s reliance on informal agreements represented the very “evils that the CC&Rs were designed to prevent.” As of the hearing date, the outstanding balance of fines, interest, and fees on the Petitioner’s account totaled $2,544.00.

Case Background

Parties Involved

Name / Entity

Representation / Key Details

Petitioner

Michelle Ruffo

Owner of unit 52, assigned parking space #131. Appeared on her own behalf.

Respondent

Reflections in the Catalinas Condo Assoc.

The condominium unit owners’ association. Represented by Nathan Tennyson, Esq. of Brown Olcott, PLLC.

Adjudicator

Diane Mihalsky

Administrative Law Judge, Office of Administrative Hearings.

Witnesses

Carol Lundberg

Testified for the Petitioner.

Vanessa Chapman Lubinsky & Gabino Trejo

Former and current property managers, respectively, who testified for the Respondent.

Core Dispute

The central issue is the Association’s imposition of fines against Ms. Ruffo for violating the community’s parking regulations. On or about April 17, 2018, Ms. Ruffo filed a petition alleging the Association violated its CC&Rs and several Arizona statutes by fining her for parking in spaces #38 and #40, which were not assigned to her unit #52. The Association denied any violation, asserting it was enforcing valid community rules.

Chronology of the Dispute

The conflict escalated over a period of approximately two years, marked by a series of notices, fines, and failed attempts at resolution.

• August 2, 2016: The Association sends a “Friendly Reminder” to Ms. Ruffo to cease parking in space #40 and use her assigned space, #131.

• August 5, 2016: A “Notice of Violation” is sent for the same issue, serving as a second warning.

• March 14, 2017: A “Final Non-Compliance Notice” is issued, noting violations in both space #40 and #38. The notice informs Ms. Ruffo of her right to a hearing with the Board of Directors if requested within 14 days.

• March 30, 2017: The first fine of $50.00 is assessed after Ms. Ruffo’s vehicle is again observed in space #38.

• April 17, 2017: Ms. Ruffo responds in writing, claiming she has permission to use the spaces and requests the fine be waived.

• April 27, 2017: The Association’s Board reviews and denies the waiver request. Ms. Ruffo was invited to address the Board but did not attend.

• June 6, 2017: A $200.00 fine is assessed for two observed violations in space #40.

• June 26, 2017: Another $200.00 fine is assessed for violations in spaces #40 and #38.

• July 11, 2017: The Association warns that access to community amenities (pool, fitness room) will be denied if fines remain unpaid. This action is later taken.

• August 31, 2017: A Board meeting is scheduled for Ms. Ruffo and her attorney, Mark F. Williman, to attend. Neither party attends, and they fail to provide advance notice. The Association incurs a $200 legal fee for its attorney’s attendance.

• September 25, 2017: Fines totaling $1,400.00 are assessed for multiple observed violations.

• September 27, 2017: The Association attempts to tow Ms. Ruffo’s vehicle. The attempt is aborted after she refuses to exit the vehicle and calls the Pima County Sheriff’s Office.

• October 4, 2017: The Association’s attorney informs Ms. Ruffo that another hearing will not be scheduled until she reimburses the Association for the $200 legal fee from the missed August 31 meeting.

• October 2017 – January 2018: A series of additional fines are assessed for ongoing violations, and Ms. Ruffo sends multiple letters requesting a hearing and protesting the fines and the $200 reimbursement requirement.

• April 17, 2018: Ms. Ruffo files the formal petition with the Arizona Department of Real Estate.

• September 18, 2018: The evidentiary hearing is held before the Office of Administrative Hearings.

Analysis of Arguments and Evidence

Petitioner’s Position (Michelle Ruffo)

Ms. Ruffo’s defense was multi-faceted, based on claims of permission, procedural errors by the Association, and alleged harassment.

• Claim of Permission: Ms. Ruffo testified that since 2005, she had been parking in spaces #38 and #40 with written permission. She claimed a 2006 agreement with the Morleys, then owners of unit #56, for space #40. She also submitted a 2018 email from Julie Ruiz, a tenant in unit #53, granting permission to use space #38.

• Allegations of Improper Notices: She argued the Association’s notices violated A.R.S. § 33-1242(C) because they did not always identify the person who observed the violation or provide photographic evidence.

• Allegations of Harassment and Retaliation: Through an attorney, Ms. Ruffo alleged she was being “unlawfully discriminated against and harassed in retaliation for her role related to allegations that HOA President Mitch Treese misappropriated HOA funds.” The ALJ noted that no evidence was submitted at the hearing to support this claim.

• Counter-Evidence: Ms. Ruffo submitted photographs dated from October 2016 to July 2017 showing other vehicles, including those of Associa maintenance and a landscaping contractor, parked in her assigned space #131.

• Dispute over Hearing Preconditions: She argued that the Association’s demand for a $200 reimbursement for its attorney’s fees as a condition for a new hearing was unlawful and not permitted under the CC&Rs.

Respondent’s Position (The Association)

The Association’s case rested on the explicit language of its governing documents and its adherence to established enforcement procedures.

• Primacy of the CC&Rs: The Association argued that its governing documents are unambiguous. Section 4.7 explicitly forbids owners from parking in any space other than the one assigned to their unit as a Limited Common Element.

• Formal Reallocation Process: Per Section 2.8.3, reallocating a Limited Common Element like a parking space requires a formal, written amendment executed by the unit owners involved and submitted to the Board for approval. Ms. Ruffo never followed this procedure.

• Rejection of Informal Agreements: The property manager testified that such private agreements are not legally binding or enforceable by the Association and create confusion, as evidenced by complaints from subsequent owners and tenants who were unable to use their assigned spaces.

• Adherence to Enforcement Policy: The Association followed its documented Violation Enforcement Policy, starting with a friendly reminder and escalating to formal notices and fines for continued non-compliance.

• Opportunity to Be Heard: Ms. Ruffo was provided opportunities to address the Board on April 27, 2017, and August 31, 2017. She failed to attend either meeting, and her failure to provide notice for the latter caused the Association to incur unnecessary legal fees.

• Witness Testimony: The former property manager, Ms. Chapman, testified that she had personally witnessed all the charged violations.

Governing Documents and Statutes

The case hinged on the interpretation of the Association’s CC&Rs and relevant Arizona state law.

Key CC&R Provisions

Section

Provision

Relevance

Motor Vehicles: “no Owner, Lessee or Occupant may park any . . . motor vehicle . . . in any Parking Spaces other than the Parking Space assigned to the Unit as a Limited Common Element.”

The central rule that the Petitioner was found to have repeatedly violated.

§ 2.8.3

Reallocation of Limited Common Elements: A reallocation requires a formal, recorded amendment executed by the owners and submitted to the Board.

The official procedure for changing parking space assignments, which the Petitioner did not follow for her informal agreements.

§ 13.1

Enforcement: Grants the Association the right to impose monetary penalties, suspend an owner’s right to use facilities, and tow vehicles in violation of the rules, after notice and an opportunity to be heard.

Provides the legal authority within the governing documents for the Association’s actions (fines, suspension of amenity access, attempted tow).

§ 1.36

“Parking Space” Definition: Defines a parking space as a portion of the Limited Common Elements.

Legally classifies the disputed parking spaces, making them subject to the rules governing Limited Common Elements.

Arizona Revised Statutes (A.R.S.)

The Petitioner cited A.R.S. § 33-1242(C), which requires an association, upon written request from an owner, to provide details of an alleged violation, including the observer’s name and the date. The ALJ determined this statute was inapplicable to the dispute. The judge’s reasoning was that the statute applies specifically to notices regarding the “condition of the property owned by the unit owner” (i.e., her physical condo unit #52), not her use of Limited Common Elements like parking spaces, which she does not own.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was a conclusive denial of the petition, siding entirely with the Association.

Final Order: “IT IS ORDERED that Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied because Petitioner has not established that Respondent violated the CC&Rs or any statute in assessing fines against her for her repeated violations of CC&R § 4.7 by parking in spaces that were not assigned to her unit #52.”

Key Legal Conclusions

• Burden of Proof: The Petitioner bore the burden of proving her claims by a preponderance of the evidence and failed to do so.

• Unambiguous Covenants: The CC&Rs regarding parking are unambiguous and must be enforced to give effect to the intent of the parties. CC&R § 4.7 clearly requires owners to park in their assigned spaces.

• Invalidity of Informal Agreements: The ALJ found that the Petitioner’s reliance on informal agreements illustrated “the evils that the CC&Rs were designed to prevent.” These undocumented side deals create instability and conflict when properties are sold or new tenants arrive, undermining the security and order of the community’s parking plan.

• Respondent’s Proper Conduct: The Association was found to have followed its own enforcement policy and provided the Petitioner with opportunities to be heard.

• Attorney’s Fee Condition: While the CC&Rs do not explicitly authorize charging an owner for attorney’s fees as a precondition for a hearing, the ALJ noted that A.R.S. § 33-1242(A)(18) allows an association to “exercise any . . . powers necessary and proper for the governance and operation.” Furthermore, civil statutes often require a party to pay for fees they cause an opponent to incur unnecessarily.

• Futility of a Board Hearing: The ALJ concluded that, in light of the Petitioner’s arguments and her “continued violation of Respondent’s parking policy over nearly two years,” a hearing before the Association’s Board would not have changed her behavior or the outcome of the matter.

Financial Implications

The conflict resulted in significant financial penalties for the Petitioner. The fines were assessed on an escalating basis for continued violations.

• March 30, 2017: $50.00

• June 6, 2017: $200.00

• June 26, 2017: $200.00

• August 9, 2017: $200.00

• September 25, 2017: $1,400.00

• October 17, 2017: $100.00

• November 6, 2017: $100.00

As of the hearing on September 18, 2018, the total outstanding balance on Ms. Ruffo’s account, including interest and certified letter fees, was $2,544.00.

Study Guide: Ruffo v. Reflections in the Catalinas Condo Association

This guide is designed to review and assess understanding of the Administrative Law Judge Decision in case number 18F-H1818044-REL, Michelle Ruffo v. Reflections in the Catalinas Condo Association.

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Short-Answer Quiz

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

1. Who are the primary parties in this case, and what is the central dispute between them?

2. What was the Petitioner’s main justification for parking in spaces that were not assigned to her unit?

3. According to the Association’s CC&Rs, what is the formal procedure required to reallocate a Limited Common Element, such as a parking space?

4. Describe the key enforcement actions the Condo Association took against the Petitioner in response to the ongoing parking violations.

5. Why did the Administrative Law Judge determine that Arizona Revised Statute § 33-1242(B) and (C) did not apply in this case?

6. Summarize the incident involving the tow truck on September 27, 2017.

7. What reason did the Association’s attorney provide for requiring the Petitioner to pay a $200 fee before another hearing would be scheduled?

8. What evidence did the Petitioner submit to demonstrate that her own assigned parking space, #131, was frequently occupied by others?

9. Identify the two property managers who provided telephonic testimony on behalf of the Respondent.

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

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Answer Key

1. The primary parties are Michelle Ruffo, the Petitioner and owner of unit 52, and Reflections in the Catalinas Condo Association, the Respondent. The central dispute is over fines imposed by the Association against Ms. Ruffo for her repeated violations of parking rules by parking in spaces not assigned to her unit.

2. The Petitioner justified her actions by claiming she had long-standing written permission from other unit owners or tenants to use their spaces. Specifically, she cited a 2006 agreement with the owners of unit #56 to use space #40 and more recent permission from a tenant in unit #53 to use space #38.

3. According to Section 2.8.3 of the CC&Rs, reallocating a Limited Common Element requires an amendment to the Declaration. This amendment must be executed by the owners involved, state how the element is being reallocated, and be submitted to the Board of Directors for approval before it can be recorded.

4. The Association’s enforcement actions escalated over time, beginning with a “Friendly Reminder” and moving to a “Notice of Violation” and a “Final Non-Compliance Notice.” Subsequently, the Association assessed escalating monetary fines, suspended the Petitioner’s access to amenities like the pool and fitness room, and attempted to have her vehicle towed.

5. The judge ruled the statute did not apply because it specifically pertains to written notices about the condition of the property owned by the unit owner. The dispute in this case was not about the condition of Ms. Ruffo’s unit (#52) but about her use of Limited Common Elements (parking spaces) that were not assigned to her.

6. On September 27, 2017, the Association attempted to tow the Petitioner’s vehicle from a space not assigned to her. The Petitioner was inside her vehicle and refused to leave, calling the Pima County Sheriff’s Office. The responding officer instructed the tow truck driver to remove the equipment and try again at another time.

7. The Association required the $200 fee to reimburse it for the attorney’s fees it incurred for a Board meeting scheduled on August 31, 2017. The Petitioner and her attorney at the time, Mr. Williman, failed to attend this meeting and did not provide notice of their absence until a few minutes before it was scheduled to begin.

8. The Petitioner submitted a series of dated photographs showing various other vehicles parked in her assigned space, #131. These vehicles included maintenance trucks bearing the Associa logo, a landscaping contractor’s truck and trailer, and several other private cars.

9. The two property managers who testified for the Respondent were Gabino Trejo, the current manager, and Vanessa Chapman Lubinsky (referred to as Ms. Chapman), the former manager.

10. The final ruling was a denial of Michelle Ruffo’s petition. The judge found that the Petitioner had not established that the Respondent violated any CC&Rs or statutes, concluding that the Association was justified in assessing fines for her repeated and clear violations of CC&R § 4.7, which requires owners to park in their assigned spaces.

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Essay Questions

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

1. Analyze the arguments and evidence presented by both the Petitioner and the Respondent. Discuss the specific CC&R sections, witness testimonies, and exhibits each side used to support their claims, and explain why the Administrative Law Judge ultimately found the Respondent’s position more convincing.

2. The concept of “Limited Common Elements” is central to this case. Using the definitions provided in the CC&Rs (Sections 1.31, 1.36, and 2.8.1(e)), explain the legal significance of this designation in the dispute over parking spaces. How did the specific rules for reallocating these elements (CC&R § 2.8.3) undermine the Petitioner’s primary defense?

3. Trace the timeline of communication and escalating enforcement actions taken by the Reflections in the Catalinas Condo Association against Michelle Ruffo, beginning with the “Friendly Reminder” in August 2016. Evaluate whether the Association followed its own Violation Enforcement Policy and the powers granted to it in the CC&Rs throughout this process.

4. Discuss the role of legal representation and the various attorneys involved in this case (Nathan Tennyson, Mark F. Williman, Eric J. Thomae, Jonathan Olcott). How did their actions, communications, and, in one instance, inaction, impact the proceedings and the relationship between the Petitioner and the Respondent?

5. The Petitioner argued that her right to due process was violated because the violation notices she received did not contain photographs or identify the person who observed the violation. Explain the Administrative Law Judge’s legal reasoning for rejecting this argument, specifically referencing the interpretation of A.R.S. § 33-1242 and the distinction made between a violation concerning the “condition of the property owned” versus the use of common elements.

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Glossary of Key Terms and Entities

Term / Entity

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Diane Mihalsky presided over the hearing at the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. Several statutes, including those under Title 33 (Property) and Title 32 (Professions and Occupations), were cited in the case.

Associa Property Management Services

The property management company employed by the Respondent to manage the condominium complex. Both Ms. Chapman and Mr. Trejo were employees of Associa.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the guidelines for a planned community or condominium. The CC&Rs define the rights and obligations of the homeowners’ association and its members.

Gabino Trejo

The current property manager for the Respondent at the time of the hearing.

Limited Common Elements

As defined in CC&R § 1.31, a portion of the Common Elements allocated for the exclusive use of one or more, but fewer than all, of the Units. Parking spaces are explicitly defined as Limited Common Elements.

Mark F. Williman, Esq.

An attorney and friend of the Petitioner who agreed to help her resolve issues with the Board. He failed to attend a scheduled Board meeting on her behalf on August 31, 2017.

Michelle Ruffo

The Petitioner in the case, owner of condominium unit 52, and member of the Respondent association.

Parking Space

As defined in CC&R § 1.36, a portion of the Limited Common Elements intended for parking a single motor vehicle and allocated to a specific Unit Owner for their exclusive use.

Petitioner

The party who files a petition or brings an action in a legal proceeding. In this case, Michelle Ruffo.

Preponderance of the Evidence

The standard of proof in this case, defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.

Reflections in the Catalinas Condo Association

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

Respondent

The party against whom a petition is filed or an action is brought. In this case, the Reflections in the Catalinas Condo Association.

Vanessa Chapman Lubinsky (Ms. Chapman)

The former property manager for the Respondent (from 2012 to early 2018) who handled most of the interactions and sent most of the violation notices to the Petitioner.

Violation Enforcement Policy

The Respondent’s official policy that outlines the procedure for addressing violations, including sending a “Friendly Reminder” and a “Notice of Violation,” and provides for a hearing if requested within 14 days.

How a Parking Spot Deal Led to a Tow Truck Standoff and a $2,544 HOA Bill: 4 Lessons

Introduction: The Handshake Deal That Cost a Fortune

It’s a common scenario in community living: you make a friendly, informal agreement with a neighbor. Maybe you agree to switch parking spots for convenience or let them use your guest pass. These simple handshake deals seem harmless, but what happens when they collide with the ironclad rules of a homeowners’ association (HOA)?

The real-life case of Michelle Ruffo and her condo association serves as a stark cautionary tale. A long-standing, informal parking arrangement escalated into a bitter dispute that culminated in a tow truck standoff, loss of amenities, and a final bill for $2,544 in fines and fees. This case reveals several surprising and critical lessons for anyone living in a community governed by an association.

1. Your Neighbor’s Permission Can Be Legally Worthless

The core of the dispute was Ms. Ruffo’s belief that she had the right to park in spaces other than her own. Since 2006, she had an agreement with another owner to use space #40. Later, she began parking in space #38, believing she had permission from that unit’s tenant. From her perspective, she had done her due diligence. This is the core conflict in community living: the perceived authority of a neighbor’s handshake versus the legal authority of the governing documents.

The association, however, operated under its official Covenants, Conditions, and Restrictions (CC&Rs). Those documents told a different story.

• Section 4.7 explicitly required owners to park only in their assigned spaces.

• Section 2.8.3 detailed the only valid procedure for changing parking allocations. Because parking spaces are “Limited Common Elements,” any reallocation required a formal, written amendment executed by the unit owners involved, submitted to the Board for approval, and then officially recorded.

Crucially, the property manager testified that the owner of the unit assigned to space #38 had explicitly denied giving Ms. Ruffo permission and reported that his tenants were complaining. Because Ms. Ruffo never followed the formal procedure, her informal agreements were not recognized or enforceable. The Administrative Law Judge’s decision highlighted the critical importance of these rules:

Because Petitioner never submitted any written agreement with another owner regarding reallocation of parking spaces to Respondent’s Board for its tacit approval, as CC&R § 2.8.3 requires, subsequent tenants and owners have no notice of Petitioner’s alleged agreements with their predecessors regarding parking spaces. If everyone adopted Petitioner’s sense of entitlement as to parking spaces at the Reflections, no one would be able to park their car with any security or plan.

2. Ignoring Official Notices Leads to More Than Just Fines

This conflict didn’t begin with a massive fine. The property management company, Associa, followed a documented escalation process that provided Ms. Ruffo with multiple opportunities to comply. For any homeowner, this documented paper trail should have been a five-alarm fire, signaling a problem that required immediate and formal resolution.

The warnings began on August 2, 2016, with a “Friendly Reminder,” followed by a “Notice of Violation” and a “Final Non-Compliance Notice.” The first fine of just $50 wasn’t assessed until March 30, 2017. But as the violations continued, so did the consequences. After a July 11, 2017 letter, the association shut off Ms. Ruffo’s “electric-key access to the pool and fitness center for the community,” a tangible loss of amenities.

The financial penalties then began to skyrocket. Fines of $200 were assessed in June and August. Then, on September 25, 2017, the association dropped the hammer: a single letter assessing $1,400 for 14 separate observed violations. Just two days later, on September 27, the dispute reached its climax. The association attempted to tow Ms. Ruffo’s vehicle. She was inside the car and refused to leave, prompting her to call the Sheriff’s Office to intervene. The situation had moved from letters and fines to a physical standoff in the parking lot.

3. Skipping a Hearing Can Get You a Bill for the HOA’s Lawyer

After retaining an attorney, Ms. Ruffo was scheduled to have her case heard by the Board on August 31, 2017. The association, anticipating a formal legal discussion, also had its own attorney present. In any formal dispute, failing to appear at your own requested hearing is a critical error. In this case, it not only cost Ruffo credibility but also came with an immediate invoice.

Minutes before the meeting, while the Board and its lawyer were waiting, Ruffo’s attorney sent a message that neither he nor his client would be attending. This last-minute cancellation had a direct financial consequence. The association’s attorney charged it $200 for the time spent on the aborted meeting. The Board then refused to schedule another hearing until Ms. Ruffo reimbursed the association for that $200 fee. This failure to engage was immediately followed by the association’s most severe actions: the $1,400 fine and the attempt to tow her vehicle.

4. “But They Do It Too!” Is Not a Winning Legal Defense

A common response to a violation notice is to point out that others are breaking the rules as well. Ms. Ruffo attempted this strategy, presenting photographic evidence that her own assigned space, #131, was frequently occupied by other vehicles, including maintenance vans bearing the property management company’s logo.

While the property manager testified that she had addressed the issue with the maintenance crew, the Judge ultimately found this argument unpersuasive. The ruling contained a crucial insight: The lesson isn’t just that this defense failed, but why it failed. The Judge noted that Ms. Ruffo “did not present any evidence… that she made any effort to report others parking in her assigned space when there was something that the property manager or Respondent could have done about it.” By failing to formally and properly report her own issue, she undermined her claim that the association was negligent, making it impossible to excuse her own persistent violations.

Conclusion: Read the Fine Print Before You Shake On It

This case serves as a powerful reminder of a fundamental truth of community living: in an HOA, the official, written governing documents are the ultimate authority. Informal “handshake deals,” no matter how reasonable they seem, can lead to serious consequences when they conflict with the rules. This dispute didn’t just involve letters; it led to escalating fines, the loss of amenities, a physical standoff with a tow truck, and ultimately a legal judgment.

This entire conflict, which cost thousands of dollars and countless hours, started with a parking spot—when was the last time you read your community’s rules?

Case Participants

Petitioner Side

  • Michelle Ruffo (petitioner)
    Appeared on her own behalf.
  • Carol Lundberg (witness)
    Resides in Unit 45; presented testimony by Petitioner.
  • Julie Ruiz (witness)
    Unit 53 Tenant
    Provided email confirming she gave Petitioner permission to park in Unit 53's space.
  • Mark F. Williman (attorney)
    Retained by Petitioner; failed to attend the August 31, 2017 Board meeting.
  • Eric J. Thomae (attorney)
    Retained by Petitioner sometime after October 24, 2017.

Respondent Side

  • Nathan Tennyson (HOA attorney)
    Brown Olcott, PLLC
  • Vanessa Chapman Lubinsky (property manager)
    Associa Property Management Services
    Former manager; referred to as Ms. Chapman in the decision.
  • Gabino Trejo (property manager)
    Associa Property Management Services
    Current manager.
  • John Pohlig (unit owner)
    Owner of unit assigned space #38; communicated he had not given Petitioner permission to park there.
  • Jonathan Olcott (HOA attorney)
  • Mitch Treese (HOA president)
    Alleged by Petitioner's attorney to have misappropriated HOA funds.

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Felicia Del Sol (administrative staff)
    Transmitted decision electronically.

Patricia Davies-Brown vs. Starwood Estates Homeowners Association

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Case Summary

Case ID 18F-H1818039-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-09-14
Administrative Law Judge Velva Moses-Thompson
Outcome The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Patricia Davies-Brown, Individually and as Trustee of the Trust; BART A. BROWN, JR.; SCOTT R. DAVIES Counsel —
Respondent Starwood Estates Homeowners Association Counsel Daniel Campbell & Kristopher L. Smith

Alleged Violations

CC&Rs; Bylaws; Architectural Guidelines

Outcome Summary

The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.

Why this result: Petitioners failed to establish by a preponderance of the evidence that Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Key Issues & Findings

Violation of Exterior Appearance and Colors provisions regarding copper-colored metal roof approval

Petitioners alleged that the HOA improperly approved a copper-colored metal roof because it constituted a reflective surface and did not blend with the natural surroundings, violating the community documents. The ALJ denied the petition, finding Petitioners failed to establish by a preponderance of the evidence that the HOA violated its documents, noting the reflective surfaces ban applied to windows and doors, not roofs, and the roof's appearance was acceptable.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: architectural control, CC&Rs enforcement, metal roof approval, reflective surfaces, burden of proof
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

18F-H1818039-REL Decision – 653217.pdf

Uploaded 2026-04-24T11:12:08 (41.6 KB)

18F-H1818039-REL Decision – 659968.pdf

Uploaded 2026-04-24T11:12:20 (104.6 KB)

18F-H1818039-REL Decision – 653217.pdf

Uploaded 2026-01-23T17:23:55 (41.6 KB)

18F-H1818039-REL Decision – 659968.pdf

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Briefing Document: Davies-Brown v. Starwood Estates HOA

Executive Summary

This document summarizes the administrative hearing and decision in case No. 18F-H1818039-REL, concerning a dispute between homeowners Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies (the “Petitioners”) and the Starwood Estates Homeowners Association (the “Respondent”). The core of the dispute was the HOA Board of Directors’ 2013 approval of a copper-colored metal roof for homeowners Jeff and Karen Martin.

The Petitioners alleged this approval violated the community’s CC&Rs, Bylaws, and Architectural Guidelines. Their primary arguments were that the roof was an impermissible “reflective surface,” that it did not “blend with the natural surrounding and landscape,” and that the Board lacked the authority to approve it without prior review by the Architectural Committee (ACC) and without viewing a physical sample.

The Respondent defended the Board’s decision, arguing that the Board possessed the authority to grant such approvals. They contended the prohibition on reflective surfaces in the community guidelines applies specifically to windows and doors, not roofing. Furthermore, they asserted that the roof was aesthetically compliant and that other reflective metal roofs exist within the community.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Respondent. The decision, issued on September 14, 2018, denied the petition, concluding that the Petitioners failed to meet their burden of proof. The ALJ found that the Board had the authority to approve the roof, the ban on reflective surfaces did not apply to roofing, and the Petitioners did not establish that the roof failed to blend with its natural surroundings.

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Case Overview

• Case Name: Patricia Davies-Brown, et al. vs. Starwood Estates Homeowners Association

• Case Number: 18F-H1818039-REL

• Forum: Arizona Office of Administrative Hearings

• Presiding Judge: Velva Moses-Thompson, Administrative Law Judge

• Hearing Dates: July 10, 2018, and August 13, 2018

• Final Decision Date: September 14, 2018

Key Parties and Representatives

Name(s)

Representation / Contact

Petitioners

Patricia Davies-Brown, Bart A. Brown, Jr., Scott R. Davies

Appeared on behalf of themselves
9777 E Dreyfus Ave., Scottsdale, AZ 85260
[email protected]

Respondent

Starwood Estates Homeowners Association

Kristopher L. Smith, Esq.
O’Connor & Campbell, P.C.
7955 S Priest Dr., Tempe, AZ 85284
[email protected]

Homeowners

Jeff and Karen Martin

Owners of the property with the disputed roof at 8500 Skywood Drive, Pinetop, Arizona (Lot 40 of Starwood Estates).

Core Dispute: The Martin Residence Roof

The central conflict originated in the summer of 2013 when the Starwood Estates Board of Directors approved a request from Jeff and Karen Martin to install a copper-colored metal roof on their home. The approval was passed by a 5-1 vote. Petitioner Scott R. Davies was the sole board member who voted against the approval at that time.

The Board reviewed a brochure containing the roof’s color before granting approval but did not observe a physical sample. However, one Board member, Pat Knight, was reportedly familiar with the appearance of such roofs from a previous home she owned nearby. The petition challenging this 2013 decision was filed on or about March 26, 2018.

Petitioners’ Allegations and Arguments

The Petitioners filed their petition with the Arizona Department of Real Estate, alleging that the HOA violated community governing documents. Their case was built on three central questions:

1. Does the exterior appearance of the Martins’ aluminum copper-colored metal roof blend with the “natural surrounding and landscape” of Starwood Estates?

2. Does such roof constitute a “reflective surface”?

3. If the answer to (1) above is no and/or the answer to (2) above is yes, did the ACC and the Board of Starwood Estates erroneously violate the provisions of the CC&R’s and GUIDELINES in permitting the Martins to install such aluminum copper-colored metal roof…?

During the hearing, the Petitioners expanded on these points, arguing:

• Reflective Surface: The copper-colored roof was a prohibited reflective surface under the Architectural Guidelines.

• Aesthetic Incompatibility: The roof did not blend with the natural surroundings as required.

• Procedural Violations:

◦ The Board violated the CC&Rs by approving the roof without first viewing a physical sample of the material.

◦ The approval was invalid because it should have first been granted by the two-person Architectural Committee (ACC) appointed by the Board.

Respondent’s Defense and Arguments

The Starwood Estates HOA maintained that its approval of the Martin roof was proper and compliant with all governing documents. Their key arguments were:

• Board Authority: The HOA asserted that either the Board of Directors or the Architectural Committee had the authority to approve the roof.

• Interpretation of “Reflective Surfaces”: The Respondent argued that the prohibition on “reflective surfaces” within the Architectural Guidelines applies specifically to windows and doors, not to roofing, which is addressed in a separate section of the guidelines.

• Aesthetic Compliance: They contended the roof, while having a “shine,” was not a barred reflective surface and did blend in with the natural surroundings.

• Precedent: The HOA noted that several other metal roofs that are reflective had been previously approved in Starwood Estates. They submitted images of reflective green and red roofs in the Pinetop Country Club area as evidence.

Referenced Governing Documents

The decision cited specific sections from the HOA’s governing documents to adjudicate the dispute.

• Section 3.1.4: Requires prior written approval from the Architectural Committee for any work that alters the exterior appearance of a Lot.

• Section 5.2: States that approvals or actions to be taken by the Association “shall be valid if given or taken by the Board.”

• Article VII, Section A(2): Grants the Board authority to exercise all powers and duties vested in the Association unless reserved to the membership.

• Article VII, Section B: Empowers the Board to “Review and approve any architectural plan for the building of any improvements on any Lots.”

• Exterior Appearance and Colors: Mandates that exterior appearance “shall blend with the natural surroundings and landscape.” It also states, “Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.” A note requires the owner to submit samples of materials for ACC approval.

• Roofs, Materials, and Pitches: Stipulates that “Metal roofs are permitted only with ACC approval” and that all pitched roof materials “shall promote a continuity of texture and color.”

Evidence Presented

• Petitioner’s Exhibit 13: A photograph of the Martins’ copper-colored roof. The ALJ’s decision noted that while the image showed a reflection, the photograph itself was “blurred.”

• Respondent’s Exhibit 26: The brochure containing the color of the copper-colored roof that the Board reviewed before its 2013 approval.

• Respondent’s Exhibit 7: Images of other reflective green and red metal roofs located in the Pinetop Country Club area, which were previously approved.

• Testimony: Board member Pat Knight’s familiarity with the appearance of copper-colored roofs was noted.

Administrative Law Judge’s Decision and Rationale

The petition was denied. The ALJ found that the Petitioners failed to establish by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving their claims by a “preponderance of the evidence,” defined as evidence that is more probably true than not. They failed to meet this standard.

2. Board Authority: The ALJ concluded that the governing documents allowed for the roof to be approved by either the Architectural Committee or the Board of Directors. The Board’s action was therefore valid.

3. Interpretation of Reflective Surfaces: The evidence established that the prohibition on “reflective surfaces” in the Architectural Guidelines applies to windows and doors. Roofs are addressed in a separate section of the guidelines. The existence of other approved shiny metal roofs further supported this interpretation.

4. Aesthetic Compliance: The Petitioners did not provide sufficient evidence to prove that the copper-colored roof failed to blend in with the natural surroundings.

Final Order

IT IS ORDERED that Petitioners’ petition is denied because Petitioners have not established that Respondent violated the Community Bylaws, Community CC&Rs, and the Community Architectural Guidelines when Respondent approved the Martins’ request to install the copper-colored roof.

The order was made binding unless a rehearing was requested within 30 days of service.

Study Guide: Davies-Brown v. Starwood Estates HOA (Case No. 18F-H1818039-REL)

This guide provides a comprehensive review of the administrative hearing case between Patricia Davies-Brown, et al., and the Starwood Estates Homeowners Association. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the provided legal documents.

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Short-Answer Quiz

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

1. Who were the primary parties involved in Case No. 18F-H1818039-REL?

2. What specific architectural feature was the central point of the dispute?

3. What were the three main questions the Petitioners raised in their petition filed on March 26, 2018?

4. How did the Respondent (Starwood Estates HOA) justify the approval of other reflective metal roofs in the community?

5. According to the Petitioners, which two procedural errors did the Board of Directors commit when approving the Martins’ roof?

6. What was the Administrative Law Judge’s conclusion regarding the prohibition of “reflective surfaces” in the Architectural Guidelines?

7. What is the legal standard of proof the Petitioners were required to meet, and did they succeed?

8. Which governing documents grant the Board of Directors the authority to approve architectural plans?

9. When was the disputed roof originally approved by the Board, and what was the vote count?

10. What evidence did the Board review before its initial approval, and what evidence was not reviewed at that time?

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Answer Key

1. The Petitioners were Patricia Davies-Brown (Individually and as Trustee of the Trust), Bart A. Brown, Jr., and Scott R. Davies. The Respondent was the Starwood Estates Homeowners Association.

2. The central dispute was an aluminum, “copper-colored metal roof” installed by homeowners Jeff and Karen Martin on their property at Lot 40 of Starwood Estates. The Petitioners challenged the HOA Board’s approval of this roof.

3. The Petitioners’ petition questioned whether the roof blended with the “natural surrounding and landscape,” whether it constituted a “reflective surface,” and if so, whether the Board and ACC violated the CC&Rs and Guidelines by permitting it.

4. The Respondent submitted evidence of other reflective green and red metal roofs within the Pinetop Country Club area that had been previously approved by the Board. This was used to argue that roofs with a shine were not explicitly barred.

5. The Petitioners contended the Board violated the CC&Rs by approving the roof without first viewing a physical sample. They also argued that the roof required approval from the two-person Architectural Committee (ACC) and could not be approved by the Board alone.

6. The Judge concluded that the bar on reflective surfaces, as written in the Architectural Guidelines, applies specifically to windows and doors. Roofs are addressed in a separate section of the guidelines that does not contain the same prohibition.

7. The Petitioners bore the burden of proof to establish their case by a “preponderance of the evidence,” which means showing their contention is more probably true than not. The Judge ruled that they failed to meet this standard.

8. Section 5.2 of the CC&Rs states that actions taken by the Board are valid, and Article VII of the Starwood Bylaws grants the Board the power to exercise Association authority and to review and approve architectural plans. The Judge found this authority allowed the Board to approve the roof.

9. The roof was approved by the Board of Directors in the summer of 2013. The approval passed with a 5-1 vote, with Petitioner Scott R. Davies being the sole board member who voted against it.

10. Before approving the roof, the Board reviewed a brochure containing the color of the copper-colored roof. However, the Board did not observe a physical sample of the actual roofing material.

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Essay Questions for Further Study

The following questions are designed for deeper, analytical consideration of the case. Answers are not provided.

1. Analyze the conflict between CC&Rs Section 3.1.4 (requiring ACC approval) and other governing documents (like CC&Rs Section 5.2 and Bylaws Article VII) that grant broad authority to the Board. How did the Administrative Law Judge resolve this apparent contradiction in the final decision?

2. Discuss the concept of “burden of proof” as it applied in this case. Explain what “preponderance of the evidence” means and detail why the Petitioners failed to meet this standard with respect to their claims about the roof’s reflective nature and its harmony with the natural surroundings.

3. Examine the interpretation of the Architectural Guidelines regarding “reflective surfaces.” How did the Respondent and the Administrative Law Judge construe this rule, and what evidence and reasoning supported their interpretation over the Petitioners’ broader application?

4. Evaluate the evidence presented by both the Petitioners and the Respondent. Discuss the strengths and weaknesses of each party’s evidence (e.g., the blurred photograph vs. the brochure and photos of other roofs) and explain how this likely influenced the outcome of the case.

5. Based on the issues raised in this case, what specific changes or clarifications could be made to the community’s CC&Rs and Architectural Guidelines to prevent similar disputes in the future?

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Glossary of Key Terms

Definition in Context

ACC (Architectural Committee)

A committee, as referenced in the CC&Rs and Architectural Guidelines, responsible for approving exterior alterations and ensuring all building materials and colors conform to community standards.

Administrative Law Judge (ALJ)

The presiding official (Velva Moses-Thompson) at the Office of Administrative Hearings who conducts hearings, evaluates evidence, and issues a binding decision on the matter.

Architectural Guidelines

A set of community documents establishing goals and specific rules for exterior appearance, colors, materials, and site development to retain the character of Starwood Estates.

Board of Directors (Board)

The governing body of the Starwood Estates Homeowners Association, which is empowered by the CC&Rs and Bylaws to conduct the affairs of the Association and approve architectural plans.

Bylaws

The rules and regulations that govern the internal operations of the Starwood Estates Homeowners Association, including the powers and duties of the Board of Directors.

Covenants, Conditions, and Restrictions. Legally binding rules recorded with the property deeds in the Starwood Estates community that govern what homeowners may or may not do with their property.

Conclusions of Law

The section of the ALJ’s decision that applies legal principles, statutes, and case law to the established facts of the case to reach a final judgment.

Findings of Fact

The section of the ALJ’s decision that formally lists the factual determinations made by the judge based on the evidence presented at the hearing.

Petitioner

The party that initiates a legal action by filing a petition. In this case, Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies, who brought the complaint against the HOA.

Preponderance of the evidence

The standard of proof required in this administrative hearing. It is defined as evidence that is more convincing and has a greater weight than the evidence offered in opposition, persuading the fact-finder that a contention is more likely true than not.

Respondent

The party against whom a petition is filed. In this case, the Starwood Estates Homeowners Association, which had to defend its decision to approve the roof.

Restrictive Covenant

A provision in a deed or community document (like a CC&R) that limits the use of the property. In Arizona, if unambiguous, these are enforced to give effect to the intent of the parties.

This Copper Roof Caused a Legal Battle: 3 Surprising Lessons Every Homeowner Should Learn

Introduction: The Neighborhood Dispute That Went to Court

The relationship between homeowners and their Homeowners Association (HOA) can be a delicate balance. Architectural rules, designed to maintain a community’s aesthetic, often become a source of friction. But what happens when a disagreement over design choices escalates?

In the case of Davies-Brown v. Starwood Estates Homeowners Association, a dispute over Jeff and Karen Martin’s new copper-colored metal roof didn’t just cause whispers over the fence—it went all the way to a formal administrative hearing. When the HOA board approved the roof in a 5-1 vote, the lone dissenting board member, Scott R. Davies, joined two other homeowners to formally challenge the decision.

This seemingly simple disagreement over a roofing material reveals several powerful, and often counter-intuitive, lessons for anyone living in a planned community. From the structural placement of a single sentence to the evidentiary power of a blurry photograph, this case offers a masterclass in HOA law. Here are three surprising lessons every homeowner should learn.

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1. The Devil in the Document: How a Single Sentence Can Decide Everything

The first major lesson from this case is that the hyper-specific wording and structure of your community guidelines are paramount. The location and context of a rule can be just as important as the rule itself.

The petitioners’ core argument was that the copper-colored roof violated the Architectural Guidelines because it was a “reflective surface,” which they believed was forbidden. On the surface, this seems like a straightforward complaint.

However, the HOA mounted a successful counter-argument based on document structure. The Administrative Law Judge agreed with the HOA’s interpretation. The rules for roofs were addressed in a distinct section titled “Roofs, Materials, and Pitches.” The ban on “reflective surfaces,” meanwhile, was located in an entirely separate section, “Exterior Appearance and Colors,” which also contained rules for windows and doors. This seemingly minor structural detail was the deciding factor on this point.

The exact rule the petitioners cited, found in the “Exterior Appearance and Colors” section, illustrates the point perfectly:

Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.

Because this prohibition was not located in the roofing section, the judge concluded it applied only to windows, doors, and general exterior surfaces—not roofs. This case highlights that homeowners must read their community documents with extreme care. A prohibition you think is universal might, in fact, be limited to a very specific context by its placement in the text.

2. The Power of Precedent: What Your Neighbors Did Years Ago Matters Today

The second key takeaway is that an HOA board’s decisions can be heavily influenced by the character of the surrounding area, not just by what has been approved inside the development’s gates.

During the hearing, the HOA presented evidence of other reflective metal roofs, including green and red ones, that existed in the broader Pinetop Country Club area. Starwood Estates is part of this larger community, and the judge’s official findings noted this evidence, which significantly supported the HOA’s position to approve the Martins’ copper-colored roof.

This reveals a nuanced lesson: an HOA doesn’t exist in a vacuum. Once a certain style or material becomes common in the surrounding region, it can establish a de facto community standard. This makes it significantly more difficult for other homeowners to argue against a similar request, as the board can point to the broader neighborhood aesthetic to justify its decision. Before you challenge a project, it’s crucial to look not only at what has been approved within your HOA, but also at the character of the community at large.

3. The Burden of Proof: Your Complaint Is Only as Good as Your Evidence

The third critical lesson is that in any formal dispute, the quality of your evidence is non-negotiable. A subjective feeling or personal opinion holds little weight without objective proof.

The petitioners attempted to prove the roof was overly reflective by submitting a photograph as evidence. However, the judge’s official findings delivered a devastating blow, noting with precise and revealing language: “Although the image showed a reflective the image, the photograph was blurred.”

This detail underscores a vital point: in a legal or formal setting, a complaint must be backed by clear, objective proof. Weak or poor-quality evidence, like a blurred photo, can completely undermine an otherwise valid concern. Even though the image hinted at the issue, its poor quality rendered it useless. If you are going to make a claim, the burden is on you to prove it with convincing, high-quality evidence. Without it, your case is likely to be dismissed.

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Conclusion: Before You Build or Battle, Do Your Homework

The Starwood Estates case serves as a powerful reminder that navigating HOA rules requires diligence. From this single dispute over a copper roof, we learn to read the fine print—and the structure—of governing documents, understand the power of aesthetic standards in the broader community, and ensure any complaint is backed by strong, clear evidence.

The next time you plan a home project or question a neighbor’s, ask yourself: have you really done your homework on the rules, the history, and the facts?

Case Participants

Petitioner Side

  • Patricia Davies-Brown (petitioner)
    Appeared on behalf of petitioners
  • Bart A. Brown, Jr. (petitioner)
  • Scott R. Davies (petitioner, board member)
    Starwood Estates HOA Board
    Voted against the roof approval

Respondent Side

  • Kristopher L. Smith (HOA attorney)
    O'Connor & Campbell, P.C.
    Appeared on behalf of Respondent
  • Daniel Campbell (HOA attorney)
    O'Connor & Campbell, P.C.
  • Pat Knight (board member)
    Starwood Estates HOA Board

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • L Dettorre (ADRE Staff)
    Arizona Department of Real Estate
  • A Hansen (ADRE Staff)
    Arizona Department of Real Estate
  • D Jones (ADRE Staff)
    Arizona Department of Real Estate
  • D Gardner (ADRE Staff)
    Arizona Department of Real Estate
  • N Cano (ADRE Staff)
    Arizona Department of Real Estate
  • C Serrano (OAH Staff)
    Office of Administrative Hearings
    Transmitted the order

Other Participants

  • Jeff Martin (Starwood Estates resident)
    Starwood Estates
    Property owner whose roof was subject of the dispute
  • Karen Martin (Starwood Estates resident)
    Starwood Estates
    Property owner whose roof was subject of the dispute

Peter Biondi, Jr. vs. Lakeshore at Andersen Springs Homeowners

Posted on by

Case Summary

Case ID 18F-H1818048-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-08-21
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Peter Biondi, Jr. Counsel —
Respondent Lakeshore at Andersen Springs Homeowners Association Counsel Maria R. Kupillas

Alleged Violations

A.R.S. §§ 33-1242, 33-1243, Respondent’s Bylaw Article II, Section 3 and Article III, Sections 2 and 3, and Respondent’s CC&Rs Section 8.13

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.

Why this result: The Board's previous action of removing directors was illegal under A.R.S. § 33-1243 because director removal must be performed by a member vote. Because the HOA lacked a legal defense to the directors' challenge, the current petition failed to prove a violation when the sole remaining Director chose not to incur unnecessary fees contesting an unwinnable case, which was permissive under A.R.S. § 33-1242.

Key Issues & Findings

Alleged failure of the sole remaining Director to defend a prior petition challenging the board's removal of two directors.

Petitioner alleged the HOA violated governing documents and statutes when the remaining Director chose not to contest a prior Department petition filed by two removed Directors, resulting in their reinstatement. The ALJ found that the initial removal of the Directors by fellow Directors was illegal under A.R.S. § 33-1243(B) and (H), which reserves removal power to members. Because the HOA lacked a good legal defense, the remaining Director's decision not to defend the prior petition, based on legal advice, was permissive under A.R.S. § 33-1242 and not a violation.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1243
  • A.R.S. § 33-1242
  • A.R.S. § 32-2199(1)
  • A.R.S. § 33-1803

Analytics Highlights

Topics: Condominium, HOA Director Removal, Board Authority, Condo Bylaws
Additional Citations:

  • A.R.S. § 33-1243
  • A.R.S. § 33-1242
  • A.R.S. § 32-2199
  • A.R.S. § 33-1248
  • A.R.S. § 33-1803
  • A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2026-04-24T11:13:38 (155.5 KB)

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2026-01-23T17:24:48 (155.5 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Biondi v. Lakeshore at Andersen Springs HOA

Executive Summary

This document synthesizes the findings of the Administrative Law Judge (ALJ) decision in Case No. 18F-H1818048-REL, where a petition filed by homeowner Peter Biondi, Jr. against the Lakeshore at Andersen Springs Homeowners Association (HOA) was denied. The central conflict revolved around the HOA Board’s removal of two directors, Jim Luzzis and Jerry Dubasquier, for alleged violations of the association’s leasing restrictions.

The ALJ’s decision rested on a critical point of law: the HOA Board acted improperly and in violation of Arizona state statute when it removed two of its own members. According to A.R.S. § 33-1243, the power to remove a board director is reserved exclusively for the association’s members (the unit owners) through a formal petition and vote, not for the Board of Directors itself.

Because the initial removal was legally invalid, the subsequent actions of the sole remaining director, Bonnie Henden, were deemed reasonable and permissible. Her decision not to defend the HOA against a petition from the improperly removed directors, a choice made upon the advice of three separate attorneys, was not a violation of her duties. The governing statute (A.R.S. § 33-1242) uses the permissive term “may” regarding the defense of litigation, and the ALJ concluded that no entity is required to mount a defense that is ill-advised and likely to fail. Consequently, Henden’s reinstatement of the directors was a logical correction of the Board’s unlawful action. The factual question of whether the directors had violated the leasing rules was considered secondary to this overriding procedural and statutory failure by the Board.

Case Background and Procedural History

The dispute originated from complaints by HOA members that two serving directors, Jim Luzzis and Jerry Dubasquier, were violating Section 8.13 of the Covenants, Conditions, and Restrictions (CC&Rs) by renting their units as short-term Vacation Rental By Owner (“VRBOs”).

1. Initial Board Action: The Board of Directors met to consider the complaints, concluded that Luzzis and Dubasquier had violated the CC&Rs, and gave them 14 days to remedy the violation by presenting compliant long-term rental agreements.

2. Removal of Directors: At a contentious executive session on January 4, 2018, the five other directors voted to remove or disqualify Luzzis and Dubasquier from the Board. Board member Bonnie Henden testified that she felt this action was a “vendetta” against the two directors for taking opposing positions on other issues.

3. Board Collapse: Following the removal, the Board structure disintegrated. The petitioner, Peter Biondi, Jr., and another director, Jeffrey Washburn, “decided to resign in order to restore calm in the community.” A third director was removed or resigned due to non-payment of assessments. By March or April 2018, this left Bonnie Henden as the sole remaining director.

4. Legal Challenge and Reinstatement: Luzzis and Dubasquier filed a petition with the Arizona Department of Real Estate to protest their removal. After consulting with three different attorneys, Henden chose not to file an answer on behalf of the HOA. The Department subsequently issued a decision in favor of Luzzis and Dubasquier. Following this outcome, Henden reinstated them to the Board to complete their elected terms and cancelled the planned election for their replacements.

5. Petitioner’s Complaint: On May 9, 2018, Peter Biondi, Jr. filed the current petition, alleging that Henden’s refusal to defend the HOA and her decision to reinstate the two directors constituted a violation of Arizona statutes (§§ 33-1242 and 33-1243), HOA Bylaws, and CC&Rs.

Central Legal Issues and Findings

The ALJ determined that the petitioner, Biondi, bore the burden of proof but that the operative facts of the case were not in dispute. The core of the case was not a factual determination but a legal one.

The Dispositive Question: Legality of Director Removal

The judge identified the central legal question as the primary determinant of the case’s outcome:

“…the dispositive issue is not the factual issue of whether Messrs. Luzzis and Dubasquier violated CC&R Section 8.13 by using their units as short-term VRBOs, but the legal issue of whether the other directors on Respondent’s Board properly removed them from the Board…”

The ruling established that the Board’s method of removal was the critical point of failure, rendering the underlying CC&R violation secondary.

Analysis of Arizona Revised Statutes (A.R.S.)

The decision was grounded in a de novo review of A.R.S. § 33-1243, which governs the powers and removal of a condominium association’s board of directors.

• A.R.S. § 33-1243(B): This subsection explicitly prohibits a board from acting on behalf of the association to “determine the qualifications, powers and duties or terms of office of board of directors members.” The ALJ found that the Board’s vote to disqualify Luzzis and Dubasquier was in direct violation of this provision.

• A.R.S. § 33-1243(H): This subsection establishes the exclusive procedure for removing a director, stating that its provisions apply “notwithstanding any provision of the declaration or bylaws to the contrary.” The statute mandates that removal can only be accomplished by:

1. A petition signed by a specified percentage or number of eligible unit owners (e.g., 25% or 100 votes, whichever is less, for an association of 1,000 or fewer members).

2. A majority vote of the unit owners at a special meeting called for this purpose within 30 days of receiving the petition.

The ALJ’s conclusion was unequivocal: “The referenced provisions of A.R.S. § 33-1243 specifically and unequivocally require that the members who elected a director must remove the director.” Because the Board failed to follow this statutory procedure, its removal of Luzzis and Dubasquier was legally invalid, and the HOA “lacked any good legal defense” to their subsequent petition.

The Legality of the Sole Director’s Actions

Based on the finding that the initial removal was unlawful, the ALJ assessed the actions taken by the sole remaining director, Bonnie Henden.

Decision Not to Defend the HOA

The petitioner argued Henden had a duty to defend the HOA against the petition from Luzzis and Dubasquier. The ALJ rejected this argument by citing A.R.S. § 33-1242(A)(4), which states an association “may… defend or intervene in litigation or administrative proceedings.”

The judge’s legal interpretation was that the word “may” indicates permissive intent, not a mandatory requirement. Henden was not statutorily obligated to contest the petition. Her decision was further supported by the legal advice she received from three attorneys, who advised that a defense would likely fail and result in unnecessary legal fees for the association. The ALJ affirmed this prudence, stating, “No statute requires a condominium association or a director to take an ill-advised act or to mount a defense of a previously taken ill-advised act that likely will fail on its merits.”

Reinstatement of Removed Directors

Henden’s decision to reinstate Luzzis and Dubasquier to the Board was found to be a direct and logical consequence of the legally improper removal. By reinstating them, she was correcting the Board’s previous unlawful action.

Relevant Governing Documents and Testimony

Document/Testimony

Key Provisions or Content

Relevance to Decision

A.R.S. § 33-1243

Prohibits boards from determining member qualifications and mandates that only unit owners can remove directors via a petition and vote.

This was the controlling statute that rendered the Board’s initial removal of Luzzis and Dubasquier unlawful.

A.R.S. § 33-1242

States an association “may” defend itself in litigation.

Provided the legal basis for Henden’s discretionary and permissible decision not to defend the HOA.

HOA CC&Rs Section 8.13

Prohibits leasing for “transient, hotel, club, timeshare or similar purposes” and requires all leases to be for a minimum of six months.

This section was the basis for the original complaint but was deemed not the dispositive issue in the case.

HOA Bylaws Article III

Governs director qualifications, number, and the filling of vacancies.

While relevant to Board governance, these bylaws were superseded by the conflicting and more specific state statute (A.R.S. § 33-1243).

Bonnie Henden Testimony

Stated the removal felt like a “vendetta” and that she consulted three attorneys before deciding not to defend the HOA.

Provided context for the internal Board conflict and established that her actions were taken after seeking extensive legal counsel.

Peter Biondi, Jr. Evidence

Submitted exhibits showing Luzzis and Dubasquier were continuing to advertise their units as VRBOs.

The evidence was acknowledged but deemed irrelevant to the central legal question of whether the Board had the authority to remove them.

Final Order and Conclusion

The Administrative Law Judge ordered that the petitioner’s petition be denied.

The final decision establishes a clear legal principle: a homeowners association’s Board of Directors does not have the authority to remove its own members in Arizona. That power is reserved for the unit owners through a specific statutory process. Any action taken by a board in contravention of this statute is legally invalid. Consequently, a director’s decision not to defend such an invalid action, especially when based on legal advice, is not a breach of duty but a prudent measure to avoid wasting association resources on a defense with no legal merit.

Study Guide: Biondi v. Lakeshore at Andersen Springs Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 18F-H1818048-REL, concerning a dispute between a condominium owner and a homeowners association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal document.

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Short-Answer Quiz

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

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

2. What specific event prompted the Petitioner, Peter Biondi, Jr., to file a petition with the Arizona Department of Real Estate?

3. According to the Respondent’s CC&Rs (Section 8.13), what were the rules regarding the leasing of condominium units?

4. Why were Board Directors Jim Luzzis and Jerry Dubasquier initially removed from their positions by the other directors?

5. How did Bonnie Henden become the sole remaining member of the Respondent’s Board of Directors?

6. What was the “dispositive issue” that the Administrative Law Judge identified as central to the case?

7. According to Arizona Revised Statute (A.R.S.) § 33-1243(H), what is the proper procedure for removing a member of a condominium association’s board of directors?

8. Why did Ms. Henden choose not to defend the association against the petition filed by Messrs. Luzzis and Dubasquier?

9. What does the legal standard “preponderance of the evidence” mean, as defined in the decision?

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

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Answer Key

1. The Petitioner was Peter Biondi, Jr., who is a condominium owner and a member of the Lakeshore at Andersen Springs Homeowners Association. The Respondent was the Lakeshore at Andersen Springs Homeowners Association itself.

2. The Petitioner filed the petition because the Board’s sole remaining member, Bonnie Henden, refused to defend the association against a petition filed by two former directors. Instead of defending the board’s prior action, Ms. Henden reinstated the two directors who had been removed.

3. Section 8.13 of the CC&Rs stipulated that all leases must be for a minimum of six months and that units could not be leased for transient, hotel, or similar purposes. Owners were also limited to leasing their unit no more than two separate times in any 12-month period and had to provide a signed copy of the lease to the association.

4. Messrs. Luzzis and Dubasquier were removed after other Board members concluded they had violated CC&R Section 8.13 by renting their units as short-term Vacation Rentals By Owner (VRBOs). The removal occurred after they were given 14 days to remedy the violation and failed to do so to the Board’s satisfaction.

5. After the removal of Luzzis and Dubasquier, the Petitioner and another director resigned to “restore calm.” A third director was removed or resigned for failing to pay an assessment, which left Ms. Henden as the only director on the Board.

6. The dispositive issue was not the factual question of whether Luzzis and Dubasquier had violated the CC&Rs. Rather, it was the legal issue of whether the other directors had the authority to properly remove them from the Board in the first place.

7. A.R.S. § 33-1243(H) states that unit owners may remove a board member by a majority vote at a meeting. This process must be initiated by a petition signed by a specific percentage or number of the association’s members who are eligible to vote.

8. Ms. Henden consulted three different attorneys who advised her that the association would likely lose the case. Their legal advice was based on A.R.S. § 33-1243, which states that board members cannot remove other board members, and defending the improper removal would incur unnecessary legal fees.

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

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that the Board’s initial removal of the two directors was improper under state law and that Ms. Henden was not required to defend that ill-advised act.

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Essay Questions

The following questions are designed for longer-form analysis and synthesis of the case details. Answers are not provided.

1. Analyze the conflict between the authority granted to the Board in the Lakeshore at Andersen Springs Bylaws (Article III, Sections 2 & 3) and the limitations placed upon it by Arizona Revised Statute § 33-1243. Explain which document takes precedence in the matter of director removal and why, citing the reasoning used by the Administrative Law Judge.

2. Discuss the role and actions of Bonnie Henden after she became the sole remaining director. Evaluate her decision to reinstate Messrs. Luzzis and Dubasquier, considering the legal advice she received, her powers as the sole director, and the potential consequences for the homeowners association.

3. Trace the procedural history of this dispute, beginning with the initial complaints about VRBOs and culminating in the final Administrative Law Judge Decision. Identify the key actions, legal filings, and turning points for each party involved (Luzzis/Dubasquier, the Board, Peter Biondi, and Bonnie Henden).

4. The judge states that the case hinges on a legal issue, not a factual one. Explain the difference between the factual issue (the VRBO rentals) and the legal issue (the removal process) and detail how this distinction was fundamental to the case’s outcome.

5. Based on the statutes cited in the decision, outline the correct, legally compliant process that the members of the Lakeshore at Andersen Springs Homeowners Association should have followed if they wished to remove Messrs. Luzzis and Dubasquier from the Board of Directors. Contrast this with the actions the Board actually took.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, in this case Diane Mihalsky from the Office of Administrative Hearings.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The decision references several statutes from Title 33 concerning property and condominiums.

Bylaws

The rules and regulations adopted by an organization, such as a homeowners association, for its internal governance. In this case, they govern matters like annual meetings and the composition of the Board of Directors.

Abbreviation for Covenants, Conditions and Restrictions. These are legally binding rules recorded with the property deed that govern what homeowners can and cannot do with their property. Section 8.13 on leasing was a key CC&R in this case.

De Novo Review

A type of legal review where a court or administrative body decides the issues without reference to any legal conclusions or assumptions made by the previous party that heard the case. It is used for determining the construction and application of statutes.

Department

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

Petitioner

The party who files a petition or brings an action in a legal proceeding. In this case, the Petitioner was Peter Biondi, Jr.

Preponderance of the Evidence

The standard of proof in most civil cases. It requires the party with the burden of proof (the Petitioner in this matter) to present evidence that is more convincing and more likely to be true than not.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Respondent was the Lakeshore at Andersen Springs Homeowners Association.

Abbreviation for Vacation Rental By Owner, referring to the practice of renting out properties on a short-term basis, similar to a hotel. This practice was alleged to be in violation of the association’s CC&Rs.

Study Guide: Biondi v. Lakeshore at Andersen Springs Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 18F-H1818048-REL, concerning a dispute between a condominium owner and a homeowners association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal document.

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Short-Answer Quiz

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

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

2. What specific event prompted the Petitioner, Peter Biondi, Jr., to file a petition with the Arizona Department of Real Estate?

3. According to the Respondent’s CC&Rs (Section 8.13), what were the rules regarding the leasing of condominium units?

4. Why were Board Directors Jim Luzzis and Jerry Dubasquier initially removed from their positions by the other directors?

5. How did Bonnie Henden become the sole remaining member of the Respondent’s Board of Directors?

6. What was the “dispositive issue” that the Administrative Law Judge identified as central to the case?

7. According to Arizona Revised Statute (A.R.S.) § 33-1243(H), what is the proper procedure for removing a member of a condominium association’s board of directors?

8. Why did Ms. Henden choose not to defend the association against the petition filed by Messrs. Luzzis and Dubasquier?

9. What does the legal standard “preponderance of the evidence” mean, as defined in the decision?

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

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Answer Key

1. The Petitioner was Peter Biondi, Jr., who is a condominium owner and a member of the Lakeshore at Andersen Springs Homeowners Association. The Respondent was the Lakeshore at Andersen Springs Homeowners Association itself.

2. The Petitioner filed the petition because the Board’s sole remaining member, Bonnie Henden, refused to defend the association against a petition filed by two former directors. Instead of defending the board’s prior action, Ms. Henden reinstated the two directors who had been removed.

3. Section 8.13 of the CC&Rs stipulated that all leases must be for a minimum of six months and that units could not be leased for transient, hotel, or similar purposes. Owners were also limited to leasing their unit no more than two separate times in any 12-month period and had to provide a signed copy of the lease to the association.

4. Messrs. Luzzis and Dubasquier were removed after other Board members concluded they had violated CC&R Section 8.13 by renting their units as short-term Vacation Rentals By Owner (VRBOs). The removal occurred after they were given 14 days to remedy the violation and failed to do so to the Board’s satisfaction.

5. After the removal of Luzzis and Dubasquier, the Petitioner and another director resigned to “restore calm.” A third director was removed or resigned for failing to pay an assessment, which left Ms. Henden as the only director on the Board.

6. The dispositive issue was not the factual question of whether Luzzis and Dubasquier had violated the CC&Rs. Rather, it was the legal issue of whether the other directors had the authority to properly remove them from the Board in the first place.

7. A.R.S. § 33-1243(H) states that unit owners may remove a board member by a majority vote at a meeting. This process must be initiated by a petition signed by a specific percentage or number of the association’s members who are eligible to vote.

8. Ms. Henden consulted three different attorneys who advised her that the association would likely lose the case. Their legal advice was based on A.R.S. § 33-1243, which states that board members cannot remove other board members, and defending the improper removal would incur unnecessary legal fees.

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

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that the Board’s initial removal of the two directors was improper under state law and that Ms. Henden was not required to defend that ill-advised act.

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Essay Questions

The following questions are designed for longer-form analysis and synthesis of the case details. Answers are not provided.

1. Analyze the conflict between the authority granted to the Board in the Lakeshore at Andersen Springs Bylaws (Article III, Sections 2 & 3) and the limitations placed upon it by Arizona Revised Statute § 33-1243. Explain which document takes precedence in the matter of director removal and why, citing the reasoning used by the Administrative Law Judge.

2. Discuss the role and actions of Bonnie Henden after she became the sole remaining director. Evaluate her decision to reinstate Messrs. Luzzis and Dubasquier, considering the legal advice she received, her powers as the sole director, and the potential consequences for the homeowners association.

3. Trace the procedural history of this dispute, beginning with the initial complaints about VRBOs and culminating in the final Administrative Law Judge Decision. Identify the key actions, legal filings, and turning points for each party involved (Luzzis/Dubasquier, the Board, Peter Biondi, and Bonnie Henden).

4. The judge states that the case hinges on a legal issue, not a factual one. Explain the difference between the factual issue (the VRBO rentals) and the legal issue (the removal process) and detail how this distinction was fundamental to the case’s outcome.

5. Based on the statutes cited in the decision, outline the correct, legally compliant process that the members of the Lakeshore at Andersen Springs Homeowners Association should have followed if they wished to remove Messrs. Luzzis and Dubasquier from the Board of Directors. Contrast this with the actions the Board actually took.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, in this case Diane Mihalsky from the Office of Administrative Hearings.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The decision references several statutes from Title 33 concerning property and condominiums.

Bylaws

The rules and regulations adopted by an organization, such as a homeowners association, for its internal governance. In this case, they govern matters like annual meetings and the composition of the Board of Directors.

Abbreviation for Covenants, Conditions and Restrictions. These are legally binding rules recorded with the property deed that govern what homeowners can and cannot do with their property. Section 8.13 on leasing was a key CC&R in this case.

De Novo Review

A type of legal review where a court or administrative body decides the issues without reference to any legal conclusions or assumptions made by the previous party that heard the case. It is used for determining the construction and application of statutes.

Department

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

Petitioner

The party who files a petition or brings an action in a legal proceeding. In this case, the Petitioner was Peter Biondi, Jr.

Preponderance of the Evidence

The standard of proof in most civil cases. It requires the party with the burden of proof (the Petitioner in this matter) to present evidence that is more convincing and more likely to be true than not.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Respondent was the Lakeshore at Andersen Springs Homeowners Association.

Abbreviation for Vacation Rental By Owner, referring to the practice of renting out properties on a short-term basis, similar to a hotel. This practice was alleged to be in violation of the association’s CC&Rs.

Case Participants

Petitioner Side

  • Peter Biondi, Jr. (petitioner)
    Appeared on his own behalf; also a unit owner and HOA member
  • Jeffrey Washburn (witness)
    Former Board member; presented testimony by Petitioner

Respondent Side

  • Maria R. Kupillas (HOA attorney)
    Law offices of Farley, Choate & Bergin
    Represented Respondent
  • Bonnie Henden (board member)
    Lakeshore at Andersen Springs Homeowners Association
    Sole remaining Director; presented testimony
  • Jim Luzzis (board member)
    Lakeshore at Andersen Springs Homeowners Association
    Director whose removal was overturned/reinstated
  • Jerry Dubasquier (board member)
    Lakeshore at Andersen Springs Homeowners Association
    Director whose removal was overturned/reinstated

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Recipient of transmission
  • Felicia Del Sol (Clerk)
    Transmitting agent
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Debbie Westerman v. Bridgewood Townhomes

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Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&R § 5(G)

Outcome Summary

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

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

Key Issues & Findings

Unreasonable denial of architectural request to build a courtyard wall

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

18F-H1818028-REL Decision – 631265.pdf

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

18F-H1818028-REL Decision – 631265.pdf

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

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

Executive Summary

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

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

1. Case Overview and Core Dispute

• Parties:

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

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

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

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

2. Chronology of the Dispute

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

Oct 25, 2017

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

Oct 25, 2017

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

Oct 25, 2017

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

Nov 29, 2017

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

Dec 28, 2017

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

Jan 2, 2018

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

Jan 8, 2018

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

Jan 23, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Administrative Law Judge’s Conclusions and Final Order

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

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

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

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

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

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

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

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

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

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

Short-Answer Quiz

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

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

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

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

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

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

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

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

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

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

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

Answer Key

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

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

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

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

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

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

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

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

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

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

Suggested Essay Questions

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

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

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

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

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

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

Glossary of Key Terms

Definition (as used in the source document)

Administrative Law Judge (ALJ)

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

Architectural Request

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

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

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

Common Area

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

Department

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

Homeowners’ Association (HOA)

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

Limited Common Elements

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

Petitioner

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

Preponderance of the Evidence

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

Respondent

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

Restrictive Covenant

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

Subpoena Duces Tecum

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

TEK 2-2B & TEK 5-15

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

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

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

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

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

Takeaway 1: Aesthetic Vision Can Legally Outweigh Practicality

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

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

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

Takeaway 2: The Power is in the Paper Trail

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

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

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

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

Takeaway 3: The Burden of Proof Is on the Homeowner

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

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

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

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

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

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

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

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

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

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

Conclusion: Beyond the Bricks

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Other Participants

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

Charles Mandela vs. Blue Ridge Estates Homeowner Association

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Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

18F-H1817006-REL Decision – 604710.pdf

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

18F-H1817006-REL Decision – 604710.pdf

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

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

Executive Summary

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

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

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

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

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

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

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

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

• Evidence and Testimony:

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

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

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

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

Respondent’s Position (Blue Ridge Estates HOA)

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

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

• Evidence and Testimony:

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

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

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

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

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

Governing Rules and Covenants

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

Document / Section

Key Provision

CC&R § 3.1

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

Architectural Regulation 3(D)

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

CC&R § 4.2

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

CC&R § 12.2

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

Administrative Law Judge’s Findings and Legal Rationale

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

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

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

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

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

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

Final Order and Implications

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

• Outcome for the Community:

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

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

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

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

Quiz: Short-Answer Questions

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

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

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

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

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

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

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

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

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

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

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

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Quiz Answer Key

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

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

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

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

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

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

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

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

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

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

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Essay Questions

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

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

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

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

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

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

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

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

Architectural Committee

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

Burden of Proof

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

CC&Rs (Covenants, Conditions, and Restrictions)

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

Declaration

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

Detached Structure

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

Improvements

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

Jurisdiction

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

Petitioner

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

Preponderance of the Evidence

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

Respondent

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

Restrictive Covenant

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

Single Family Residential Use

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

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

Executive Summary

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

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

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

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

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

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

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

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

• Evidence and Testimony:

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

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

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

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

Respondent’s Position (Blue Ridge Estates HOA)

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

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

• Evidence and Testimony:

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

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

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

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

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

Governing Rules and Covenants

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

Document / Section

Key Provision

CC&R § 3.1

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

Architectural Regulation 3(D)

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

CC&R § 4.2

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

CC&R § 12.2

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

Administrative Law Judge’s Findings and Legal Rationale

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

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

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

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

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

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

Final Order and Implications

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

• Outcome for the Community:

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

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

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

Case Participants

Petitioner Side

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

Respondent Side

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

Neutral Parties

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

Johnson, Robert and Cynthia -v- Starlight Pines Homeowners Association

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Case Summary

Case ID 08F-H078007-BFS
Agency ADRE
Tribunal OAH
Decision Date 2008-02-04
Administrative Law Judge Brian Brendan Tully
Outcome The ALJ dismissed the petition, finding that the Respondent did not violate A.R.S. § 33-1803 or the CC&Rs. The architectural approval Petitioners relied upon was deemed invalid because the committee members granting it lacked authority.
Filing Fees Refunded $550.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert and Cynthia Johnson Counsel —
Respondent Starlight Pines Homeowners Association Counsel Scott Humble

Alleged Violations

A.R.S. § 33-1803; CC&Rs 3.7, 4.3, 10.8, 11.3

Outcome Summary

The ALJ dismissed the petition, finding that the Respondent did not violate A.R.S. § 33-1803 or the CC&Rs. The architectural approval Petitioners relied upon was deemed invalid because the committee members granting it lacked authority.

Why this result: The Administrative Law Judge determined that the Architectural Committee members acted without valid authority when issuing approvals for permanent parking of livable trailers, rendering the approval invalid.

Key Issues & Findings

RV Parking and Architectural Committee Authority

Petitioners alleged the HOA enforced an illegal rule limiting RV units and ignored a prior approval for their trailer. The HOA argued the approval was granted by a committee acting without authority.

Orders: Petition dismissed.

Filing fee: $550.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803
  • CC&Rs 3.7
  • CC&Rs 4.3
  • CC&Rs 10.8
  • CC&Rs 11.3

Video Overview

Audio Overview

Decision Documents

08F-H078007-BFS Decision – 184842.pdf

Uploaded 2026-04-24T04:47:23 (89.7 KB)

08F-H078007-BFS Decision – 184842.pdf

Uploaded 2026-01-25T15:21:12 (89.7 KB)

Administrative Hearing Briefing: Johnson v. Starlight Pines Homeowners Association

Executive Summary

This briefing document analyzes the administrative decision in Case No. 08F-H078007-BFS, involving Robert and Cynthia Johnson (Petitioners) and the Starlight Pines Homeowners Association (Respondent). The dispute centered on the enforcement of rules regarding the parking of livable recreational vehicles (RVs) on private property within the association.

The Administrative Law Judge (ALJ) determined that a former Architectural Committee—which included one of the Petitioners—had acted without valid authority when it attempted to revoke existing property rules and grant itself permanent parking approvals. The ALJ concluded that the Respondent did not violate state statutes or its own governing documents. Consequently, the Petitioners’ claims were dismissed, and the original enforcement of the Declaration of Covenants, Conditions and Restrictions (CC&Rs) was upheld.

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Case Overview and Regulatory Framework

Parties and Jurisdiction

• Petitioners: Robert and Cynthia Johnson, members of the Starlight Pines Homeowners Association.

• Respondent: Starlight Pines Homeowners Association, located in Happy Jack, Arizona.

• Adjudicating Body: Arizona Office of Administrative Hearings, acting on a referral from the Department of Fire, Building and Life Safety.

• Presiding Judge: Administrative Law Judge Brian Brendan Tully.

Governing Documents and Statutes

The matter was adjudicated based on the following authorities:

• CC&Rs: The Declaration of Covenants, Conditions and Restrictions dated April 3, 1984. Specifically sections 3.7 (recreational vehicle use), 4.3 (rule-making authority), 10.8, and 11.3.

• A.R.S. § 33-1803: Arizona Revised Statute governing planned communities.

• A.A.C. R2-19-119: Administrative rules regarding the burden of proof (preponderance of the evidence).

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Factual Analysis of the Dispute

The Core Conflict

The dispute originated from the Petitioners parking a “livable recreational vehicle” in open view on their property. On April 5, 2007, the Respondent’s Architectural Committee issued a Non-Compliance Report, citing a violation of Section 3.7 of the CC&Rs and demanding the removal of the unit.

Actions of the Former Architectural Committee

The case revealed a significant internal conflict regarding the authority of the Architectural Committee between late 2006 and early 2007. At that time, the committee consisted of Petitioner Robert Johnson, David Anderson, and Evert Bondurant.

The following timeline details the committee’s actions:

Oct 18, 2006

Petitioner Robert Johnson submitted a request to his own committee for the permanent storage of a travel trailer.

Oct 25, 2006

The committee (signed by Anderson and Bondurant) approved Johnson’s request, despite the committee’s October report not reflecting this approval.

Jan 19, 2007

The committee issued a “rule change,” declaring the Architectural Rules associated with CC&R 3.7 “prejudicial and discriminatory” and purported to revoke them.

Jan 20, 2007

The HOA Board of Directors removed Johnson, Anderson, and Bondurant from the committee for refusing to enforce Section 3.7 policies.

Feb 15, 2007

The Board notified members that only the Board had the authority to revoke policies or procedures.

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Legal Findings and Conclusions

Authority and Validity of Approvals

The ALJ found that the Architectural Committee composed of Johnson, Anderson, and Bondurant “acted without valid authority” when it issued approvals for permanent trailer parking. The following legal determinations were made:

• Invalid Approval: The approval granted to Petitioner Robert Johnson by his fellow committee members was ruled invalid.

• Disregard for Rules: Testimony from Evert Bondurant admitted that the committee had intentionally disregarded the Association’s Property Rules.

• Board Supremacy: Under Section 4.3 of the CC&Rs, the Association Board—not the Architectural Committee—retains the authority to adopt, amend, and repeal rules by a majority vote.

Failure to Meet Burden of Proof

The Petitioners alleged that the Board was enforcing an “illegal rule” in violation of state law (A.R.S. § 33-1803) and the CC&Rs. However, the ALJ concluded:

1. Statutory Compliance: The Respondent did not violate A.R.S. § 33-1803.

2. Contractual Compliance: The Respondent did not violate CC&R Sections 3.7, 4.3, 10.8, or 11.3.

3. Evidentiary Failure: The Petitioners failed to sustain the burden of proof required to support their allegations.

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Final Decision and Order

The Administrative Law Judge ruled in favor of the Starlight Pines Homeowners Association, designating them the prevailing party.

Key Outcomes:

• Dismissal: The Petition was dismissed in its entirety.

• Finality: Pursuant to A.R.S. § 41-2198.04(A), the order is the final administrative decision and is not subject to a request for rehearing.

• Financial Liability: The Petitioners were not entitled to a refund of their $550.00 filing fee.

• Enforcement: The order is enforceable through contempt of court proceedings.

Case Study: Johnson v. Starlight Pines Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Robert and Cynthia Johnson and the Starlight Pines Homeowners Association. It examines the legal dispute regarding property use restrictions, the authority of association committees, and the final decision rendered by the Office of Administrative Hearings.

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Short-Answer Quiz

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

1. Who are the primary parties involved in Case No. 08F-H078007-BFS, and what is the nature of their relationship?

2. What specific action by the homeowners did the Starlight Pines Homeowners Association claim was a violation of the community rules?

3. What was the core legal allegation made by Robert and Cynthia Johnson in their petition against the association?

4. What role does the Department of Fire, Building and Life Safety play in disputes between homeowners and associations in Arizona?

5. What conflict of interest was present when Robert Johnson’s request for permanent trailer storage was approved in October 2006?

6. Why did the Starlight Pines Board of Directors remove the members of the Architectural Committee on January 20, 2007?

7. What did the Architectural Committee attempt to do regarding the rules associated with CC&R paragraph 3.7 on January 19, 2007?

8. According to the Board of Directors’ letter dated February 15, 2007, who holds the ultimate authority to revoke policies or procedures?

9. What is the “burden of proof” required in this matter, and which party was responsible for meeting it?

10. What was the final outcome regarding the $550.00 filing fee paid by the Petitioners?

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Answer Key

1. The primary parties are Robert and Cynthia Johnson (the Petitioners) and the Starlight Pines Homeowners Association (the Respondent). The Johnsons are members of the Association, which is located in Happy Jack, Arizona.

2. The dispute centered on the Johnsons parking a “livable/sleeper type” recreational vehicle in open view on their property. The Association issued a Non-Compliance Report stating this violated Section 3.7 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

3. The Johnsons alleged that the Board of Directors was enforcing an “illegal rule” that limited the types of RV units allowed in Starlight Pines. They claimed this enforcement violated various sections of their CC&Rs as well as Arizona Revised Statutes (A.R.S.) Title 33.

4. The Department is authorized by statute to receive Petitions for Hearing from members of homeowner associations. Once received, the Department refers these petitions to the Office of Administrative Hearings for a formal evidentiary hearing.

5. At the time the approval was granted, Robert Johnson was himself a member of the three-person Architectural Committee. Although the other two members signed the approval, the committee was essentially ruling on a request submitted by one of its own members.

6. The Board removed the committee members because they refused to enforce the established policies and procedures applicable to Section 3.7 of the CC&Rs. The Board subsequently notified the membership that the committee had acted without valid authority.

7. The committee issued a rule change declaring that the Architectural Rules associated with CC&R paragraph 3.7 were “prejudicial and discriminatory.” Based on this determination, they claimed the rules were revoked effective January 19, 2007.

8. The Board clarified that only the Board of Directors has the authority to revoke any policy or procedure that the Board has previously approved. This established that the Architectural Committee exceeded its jurisdiction when it attempted to unilaterally revoke rules.

9. Pursuant to A.A.C. R2-19-119, the Petitioners (the Johnsons) bore the burden of proof. The legal standard they were required to meet was a “preponderance of the evidence.”

10. The Petitioners were not entitled to an award of their $550.00 filing fee because they were not the prevailing party. Since the Judge dismissed the petition and ruled in favor of the Association, the Johnsons remained responsible for the cost.

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Essay Questions

Instructions: Use the case details to develop comprehensive responses to the following prompts.

1. The Limits of Committee Authority: Analyze the legal distinction between the powers of the Board of Directors and the powers of the Architectural Committee as presented in the case. Why was the committee’s attempt to revoke rules deemed invalid?

2. Conflict of Interest and Governance: Discuss the ethical and legal implications of Robert Johnson serving on the Architectural Committee while seeking a personal variance for his travel trailer. How did this conflict impact the validity of the committee’s decisions?

3. The Role of CC&Rs in Planned Communities: Explain how the Covenants, Conditions, and Restrictions (CC&Rs) serve as a contract between the Association and its members. Use specific sections (e.g., 3.7, 4.3) from the document to illustrate your points.

4. Administrative Hearing Procedures: Describe the path of a homeowner dispute in Arizona, from the filing of a petition with the Department of Fire, Building and Life Safety to the issuance of a final order by an Administrative Law Judge.

5. The Preponderance of Evidence Standard: Evaluate why the Petitioners failed to meet their burden of proof in this case. What evidence or lack thereof led the Administrative Law Judge to conclude that the Association did not violate A.R.S. § 33-1803?

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Glossary of Key Terms

Definition

A.R.S. § 33-1803

The Arizona Revised Statute governing the assessment of penalties and the enforcement of community documents within planned communities.

Administrative Law Judge (ALJ)

A presiding official (in this case, Brian Brendan Tully) who conducts hearings and issues decisions for independent government agencies.

Architectural Committee

A body appointed by the Board of Directors to oversee and enforce specific property and building standards defined in the CC&Rs.

Covenants, Conditions, and Restrictions; the legal documents that dictate the rules and limitations for property use within a homeowners association.

Livable/Sleeper Type Unit

A recreational vehicle or trailer designed for habitation, which was the specific type of unit restricted under the Starlight Pines rules.

Non-Compliance Report

A formal notification issued to a property owner stating they have violated a specific rule or provision of the association’s documents.

Office of Administrative Hearings

An independent Arizona agency where formal evidentiary hearings are held regarding disputes involving state departments or associations.

Petitioner

The party who initiates a legal action or petition (in this case, Robert and Cynthia Johnson).

Preponderance of the Evidence

The standard of proof in civil and administrative cases, requiring that a claim is more likely to be true than not true.

Respondent

The party against whom a legal action or petition is filed (in this case, Starlight Pines Homeowners Association).

Case Study: Johnson v. Starlight Pines Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Robert and Cynthia Johnson and the Starlight Pines Homeowners Association. It examines the legal dispute regarding property use restrictions, the authority of association committees, and the final decision rendered by the Office of Administrative Hearings.

——————————————————————————–

Short-Answer Quiz

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

1. Who are the primary parties involved in Case No. 08F-H078007-BFS, and what is the nature of their relationship?

2. What specific action by the homeowners did the Starlight Pines Homeowners Association claim was a violation of the community rules?

3. What was the core legal allegation made by Robert and Cynthia Johnson in their petition against the association?

4. What role does the Department of Fire, Building and Life Safety play in disputes between homeowners and associations in Arizona?

5. What conflict of interest was present when Robert Johnson’s request for permanent trailer storage was approved in October 2006?

6. Why did the Starlight Pines Board of Directors remove the members of the Architectural Committee on January 20, 2007?

7. What did the Architectural Committee attempt to do regarding the rules associated with CC&R paragraph 3.7 on January 19, 2007?

8. According to the Board of Directors’ letter dated February 15, 2007, who holds the ultimate authority to revoke policies or procedures?

9. What is the “burden of proof” required in this matter, and which party was responsible for meeting it?

10. What was the final outcome regarding the $550.00 filing fee paid by the Petitioners?

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Answer Key

1. The primary parties are Robert and Cynthia Johnson (the Petitioners) and the Starlight Pines Homeowners Association (the Respondent). The Johnsons are members of the Association, which is located in Happy Jack, Arizona.

2. The dispute centered on the Johnsons parking a “livable/sleeper type” recreational vehicle in open view on their property. The Association issued a Non-Compliance Report stating this violated Section 3.7 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

3. The Johnsons alleged that the Board of Directors was enforcing an “illegal rule” that limited the types of RV units allowed in Starlight Pines. They claimed this enforcement violated various sections of their CC&Rs as well as Arizona Revised Statutes (A.R.S.) Title 33.

4. The Department is authorized by statute to receive Petitions for Hearing from members of homeowner associations. Once received, the Department refers these petitions to the Office of Administrative Hearings for a formal evidentiary hearing.

5. At the time the approval was granted, Robert Johnson was himself a member of the three-person Architectural Committee. Although the other two members signed the approval, the committee was essentially ruling on a request submitted by one of its own members.

6. The Board removed the committee members because they refused to enforce the established policies and procedures applicable to Section 3.7 of the CC&Rs. The Board subsequently notified the membership that the committee had acted without valid authority.

7. The committee issued a rule change declaring that the Architectural Rules associated with CC&R paragraph 3.7 were “prejudicial and discriminatory.” Based on this determination, they claimed the rules were revoked effective January 19, 2007.

8. The Board clarified that only the Board of Directors has the authority to revoke any policy or procedure that the Board has previously approved. This established that the Architectural Committee exceeded its jurisdiction when it attempted to unilaterally revoke rules.

9. Pursuant to A.A.C. R2-19-119, the Petitioners (the Johnsons) bore the burden of proof. The legal standard they were required to meet was a “preponderance of the evidence.”

10. The Petitioners were not entitled to an award of their $550.00 filing fee because they were not the prevailing party. Since the Judge dismissed the petition and ruled in favor of the Association, the Johnsons remained responsible for the cost.

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Essay Questions

Instructions: Use the case details to develop comprehensive responses to the following prompts.

1. The Limits of Committee Authority: Analyze the legal distinction between the powers of the Board of Directors and the powers of the Architectural Committee as presented in the case. Why was the committee’s attempt to revoke rules deemed invalid?

2. Conflict of Interest and Governance: Discuss the ethical and legal implications of Robert Johnson serving on the Architectural Committee while seeking a personal variance for his travel trailer. How did this conflict impact the validity of the committee’s decisions?

3. The Role of CC&Rs in Planned Communities: Explain how the Covenants, Conditions, and Restrictions (CC&Rs) serve as a contract between the Association and its members. Use specific sections (e.g., 3.7, 4.3) from the document to illustrate your points.

4. Administrative Hearing Procedures: Describe the path of a homeowner dispute in Arizona, from the filing of a petition with the Department of Fire, Building and Life Safety to the issuance of a final order by an Administrative Law Judge.

5. The Preponderance of Evidence Standard: Evaluate why the Petitioners failed to meet their burden of proof in this case. What evidence or lack thereof led the Administrative Law Judge to conclude that the Association did not violate A.R.S. § 33-1803?

——————————————————————————–

Glossary of Key Terms

Definition

A.R.S. § 33-1803

The Arizona Revised Statute governing the assessment of penalties and the enforcement of community documents within planned communities.

Administrative Law Judge (ALJ)

A presiding official (in this case, Brian Brendan Tully) who conducts hearings and issues decisions for independent government agencies.

Architectural Committee

A body appointed by the Board of Directors to oversee and enforce specific property and building standards defined in the CC&Rs.

Covenants, Conditions, and Restrictions; the legal documents that dictate the rules and limitations for property use within a homeowners association.

Livable/Sleeper Type Unit

A recreational vehicle or trailer designed for habitation, which was the specific type of unit restricted under the Starlight Pines rules.

Non-Compliance Report

A formal notification issued to a property owner stating they have violated a specific rule or provision of the association’s documents.

Office of Administrative Hearings

An independent Arizona agency where formal evidentiary hearings are held regarding disputes involving state departments or associations.

Petitioner

The party who initiates a legal action or petition (in this case, Robert and Cynthia Johnson).

Preponderance of the Evidence

The standard of proof in civil and administrative cases, requiring that a claim is more likely to be true than not true.

Respondent

The party against whom a legal action or petition is filed (in this case, Starlight Pines Homeowners Association).

Case Participants

Petitioner Side

  • Robert Johnson (Petitioner)
    Starlight Pines Homeowners Association
    Former Architectural Committee member
  • Cynthia Johnson (Petitioner)
    Starlight Pines Homeowners Association
  • Evert Bondurant (witness)
    Starlight Pines Homeowners Association
    Former Architectural Committee member; testified for Petitioners

Respondent Side

  • Scott Humble (attorney)
    Turley Swan Childers Righi & Torrens, PC
    Represented Starlight Pines Homeowners Association
  • Joseph B. Swan, Jr. (attorney)
    Turley Swan Childers Righi & Torrens, PC
    Listed on mailing list with respondent's attorney

Neutral Parties

  • Brian Brendan Tully (ALJ)
    Office of Administrative Hearings
  • Robert Barger (Director)
    Department of Fire, Building and Life Safety
    Listed on mailing list
  • Debra Blake (staff)
    Department of Fire, Building and Life Safety
    Listed on mailing list

Other Participants

  • David Anderson (board member)
    Starlight Pines Homeowners Association
    Former Architectural Committee member