The Ridge at Diamante del Lago Homeowners Association, Inc.
Counsel
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Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.
Key Issues & Findings
Failure to provide timely access to association financial records
Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.
Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805(A)
CC&R § 4.8
Analytics Highlights
Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement
Additional Citations:
A.R.S. § 33-1805(A)
CC&R § 4.8
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)
Video Overview
Audio Overview
Decision Documents
19F-H1918034-REL Decision – 692859.pdf
Uploaded 2025-10-09T03:33:53 (151.9 KB)
Briefing Doc – 19F-H1918034-REL
Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.
The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.
Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.
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I. Case Overview
• Case Number: 19F-H1918034-REL
• Forum: Arizona Office of Administrative Hearings
• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.
• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.
• Administrative Law Judge: Diane Mihalsky
• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.
II. Governing Rules and Statutes
The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.
Rule/Statute
Key Provision
CC&R § 4.8
Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.
A.R.S. § 33-1805(A)
Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.
The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.
III. Chronology of the Dispute
The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.
• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.
• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”
• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).
• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”
• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.
• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.
• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.
• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.
• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.
• February 20, 2019: An evidentiary hearing is held before the ALJ.
IV. Analysis of Evidence and Arguments
A. Petitioner’s Position
Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.
• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.
• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.
• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:
◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.
◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.
◦ The HOA’s ACC approval process was not followed for the wall.
◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).
B. Respondent’s Position
The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.
• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.
• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.
• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.
• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.
A. Conclusions of Law
1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”
2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”
3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.
B. Recommended Order
Based on the findings, the ALJ issued a two-part order:
1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).
2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.
The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.
Study Guide – 19F-H1918034-REL
Study Guide: Curtin v. The Ridge at Diamante del Lago Homeowners Association, Inc.
This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1918034-REL, involving Petitioner Linda Curtin and Respondent The Ridge at Diamante del Lago Homeowners Association, Inc. It includes a quiz with an answer key to test comprehension, a set of essay questions for deeper analysis, and a glossary of key terms.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based exclusively on the information provided in the case document.
1. Who are the primary parties involved in this case and what are their respective roles?
2. What was the central allegation in the single-issue petition filed by Linda Curtin on November 28, 2018?
3. Which specific Arizona Revised Statute and CC&R section did the Petitioner claim the Respondent violated?
4. How did the HOA, through its community manager, initially attempt to resolve the records request that led to the petition?
5. What additional documents did Ms. Curtin request after receiving the contractor’s invoice on December 10, 2018?
6. What were Ms. Curtin’s specific suspicions and complaints regarding the quality and validity of the documents she eventually received?
7. What was Community Manager Tracy Schofield’s testimony regarding her role and the location of the association’s records?
8. According to the “Conclusions of Law,” what is the primary requirement of A.R.S. § 33-1805(A) regarding member requests for records?
9. On what specific point did the Administrative Law Judge find that the Respondent had violated the statute?
10. What was the final Recommended Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties are Linda Curtin, the Petitioner and a homeowner, and The Ridge at Diamante del Lago Homeowners Association, Inc., the Respondent. Tracy Schofield appeared for the HOA as its Community Manager, and Diane Mihalsky served as the Administrative Law Judge.
2. The central allegation was that the HOA violated its own rules and state law by refusing to make association records available. Specifically, Ms. Curtin sought a receipt identifying the contractor and the amount paid for a cinderblock wall built by the community clubhouse.
3. The Petitioner claimed the Respondent violated CC&R § 4.8, concerning the keeping and availability of accounting records, and A.R.S. § 33-1805, which governs the examination of association records by members.
4. On September 24, 2018, Ms. Schofield responded to Ms. Curtin’s written request by stating she did not have invoices at her office. She did, however, provide a printout of payments made to the contractor, Gaulberto Castro, which included a $1,000.00 payment for “Block work – clubhouse.”
5. After receiving the invoice, Ms. Curtin requested a copy of the cashed check (front and back), the payee’s mailing address, and the completed Architectural Control Committee Application for the project, including the contractor’s address, license number, and insurance company.
6. Ms. Curtin complained that the contractor, Mr. Castro, was not licensed and that the job did not meet the exemption requirements for the Registrar of Contractors. She also opined that the receipt from November 2, 2017, appeared to be a forgery with two different kinds of handwriting.
7. Ms. Schofield testified that she is not an onsite manager, works for numerous associations, and does not keep any association records in her office. She stated that for future requests, she would schedule a time for Ms. Curtin to view the records at the Respondent’s records depository.
8. The primary requirement of A.R.S. § 33-1805(A) is that all financial and other records of an association must be made reasonably available for examination by any member. The statute mandates that the association has ten business days to fulfill a request for examination or to provide copies.
9. The Judge found that the Respondent violated A.R.S. § 33-1805(A) because, while it eventually provided all documents in its possession, it failed to provide the documents or access to them within the statutorily required ten-day period following Ms. Curtin’s September 12, 2018 request.
10. The Judge ordered that the Petitioner’s petition be granted because she established the violation of A.R.S. § 33-1805(A). The Judge further ordered that the Respondent reimburse Ms. Curtin the $500.00 she paid to file her single-issue petition.
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Essay Questions
Instructions: The following questions are designed to encourage a deeper analysis of the case. Formulate comprehensive responses using only the evidence and legal reasoning presented in the source document.
1. Analyze the timeline of communication between Linda Curtin and Tracy Schofield, from the initial informal inquiry on August 1, 2018, to the formal petition. How did the nature of the requests and the quality of the responses contribute to the escalation of the dispute?
2. Discuss the legal standard of “preponderance of the evidence” as it is defined and applied in this case. Explain how the Administrative Law Judge used this standard to find the Respondent in violation of the ten-day rule while simultaneously dismissing the Petitioner’s other concerns about transparency and forgery.
3. The Petitioner raised several issues during the hearing that were not part of her original single-issue petition, such as the contractor’s licensing status, the lack of Board meeting minutes authorizing the project, and a proposed $125,000 pool remodel. Why did the Administrative Law Judge deem these points irrelevant to the final decision?
4. Evaluate the responsibilities of a Homeowners Association regarding record-keeping and member access as outlined in CC&R § 4.8 and A.R.S. § 33-1805(A). Based on the testimony and evidence, describe the specific procedural failures of The Ridge at Diamante del Lago HOA in this matter.
5. The Judge’s decision explicitly states that the Petitioner’s “dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” Explore the distinction the ruling makes between a procedural violation (timeliness of access) and the substantive content or perceived legitimacy of the records themselves.
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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 of the Office of Administrative Hearings served as the ALJ.
A.R.S. § 33-1805
An Arizona Revised Statute requiring that all financial and other records of a homeowners association be made reasonably available for examination by any member within ten business days of a request.
Complainant
An alternative term used in the document to refer to the Petitioner, Linda Curtin.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents that create and define the rules for a planned community. In this case, CC&R § 4.8, which deals with accounting records, was cited.
Department (The)
Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions for hearings from HOA members and HOAs.
Evidentiary Hearing
A formal proceeding where evidence is presented and testimony is given before an administrative law judge to resolve a factual dispute. The hearing in this case took place on February 20, 2019.
Homeowners’ Association (HOA)
An organization in a planned community that creates and enforces rules for the properties and its members. The Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Linda Curtin, a homeowner and member of the Respondent HOA.
Preponderance of the Evidence
The standard of proof required in this case, defined as evidence that is more convincing and has greater weight, inclining an impartial mind to one side of the issue rather than the other. The Petitioner bears this burden of proof.
Respondent
The party against whom a petition is filed. In this case, the Respondent is The Ridge at Diamante del Lago Homeowners Association, Inc.
Restrictive Covenants
Legal obligations imposed in a deed upon the buyer of real estate. The document notes that if unambiguous, they are enforced to give effect to the intent of the parties.
Case Participants
Petitioner Side
Linda Curtin(petitioner) Also referred to as 'Complainant'; testified on her own behalf
Respondent Side
Tracy Schofield(community manager) The Ridge at Diamante del Lago Homeowners Association Appeared for Respondent and testified as Community Manager
Jim Mackiewicz(board member) The Ridge at Diamante del Lago Homeowners Association Board Treasurer
Mitch Kellogg(statutory agent) The Ridge at Diamante del Lago Homeowners Association, Inc.
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Gualberto Castro(contractor) Gualberto Stucco & Repairs Contractor involved in the disputed work
Felicia Del Sol(administrative staff) Transmitted decision electronically
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
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Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not, representing the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
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Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
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Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not, representing the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
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Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
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.
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 – 19F-H1918019-REL
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.
Blog Post – 19F-H1918019-REL
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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.
Based on 1 source
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
A.R.S. §§ 33-1803 and 1809; CC&Rs Amendments 1, 2, and 3; Greenlaw Rules and Regulations
Outcome Summary
The Administrative Law Judge denied the petition, finding that the Petitioner failed to establish by a preponderance of the evidence that the HOA violated the cited governing documents (CC&Rs/Rules) or state statutes (A.R.S. §§ 33-1803 and 1809) by banning street parking and contracting for vehicle booting/towing.
Why this result: Petitioner failed to meet the burden of proof regarding violations of CC&Rs Amendments 1, 2, and 3, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. The ALJ found the July 2018 revised Rules, which banned parking, were controlling.
Key Issues & Findings
Violation regarding banning parking and use of towing/booting company.
Petitioner alleged the HOA improperly banned street parking and contracted with a towing/booting company, arguing this violated specific CC&R amendments, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. He also claimed the 2018 revised Rules were invalid due to improper electronic notice instead of personal delivery or mail.
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 – 19F-H1918019-REL
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.
Blog Post – 19F-H1918019-REL
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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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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
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 2026-01-23T17:24:18 (270.9 KB)
Briefing Doc – 18F-H1818044-REL
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 – 18F-H1818044-REL
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.
Blog Post – 18F-H1818044-REL
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.
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 2025-10-09T03:32:52 (270.9 KB)
Briefing Doc – 18F-H1818044-REL
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 – 18F-H1818044-REL
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.
Blog Post – 18F-H1818044-REL
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, 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)
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 – 18F-H1818039-REL
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.
Blog Post – 18F-H1818039-REL
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
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)
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 – 18F-H1818039-REL
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.
Blog Post – 18F-H1818039-REL
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
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 2026-01-23T17:24:48 (155.5 KB)
Briefing Doc – 18F-H1818048-REL
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 – 18F-H1818048-REL
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.
Blog Post – 18F-H1818048-REL
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.
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
