Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1918042-REL
Agency
ADRE
Tribunal
OAH
Decision Date
2020-01-15
Administrative Law Judge
Kay A. Abramsohn
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joan A. Tober
Counsel
—
Respondent
Civano 1 Neighborhood 1 Homeowners Association
Counsel
Diana J. Elston
Alleged Violations
A.R.S. § 33-1805
Outcome Summary
The Administrative Law Judge concluded that the Civano 1 Neighborhood 1 Homeowners Association (HOA) was the prevailing party. The ALJ found that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B) because the specific attorney letter requested was privileged and could be withheld,, and Petitioner's request for additional 'background information' was unreasonably broad and unclarified,.
Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1805(A) as the HOA lawfully withheld privileged documents under A.R.S. § 33-1805(B) and was not required to guess what records were requested due to the vague nature of the demand for 'any and all documentation'.
Key Issues & Findings
HOA violation of requirement to provide association records.
Petitioner alleged the HOA failed to provide all requested documentation, specifically an attorney letter concerning the North Ridge wall, and failed to comply with the 10-business day response period required for record requests.
Orders: The HOA was deemed the prevailing party on rehearing and Petitioner's appeal was dismissed. The HOA acted in compliance with A.R.S. § 33-1805(A) and (B). The requested attorney letter was privileged communication and could be withheld.
Briefing Document: Tober v. Civano 1 Homeowners Association
Executive Summary
This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”
The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.
The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.
Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.
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Case Overview
This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).
Case Name
Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.
Case Number
19F-H1918042-REL
Adjudicating Body
Office of Administrative Hearings (OAH)
Administrative Law Judge
Kay A. Abramsohn
Core Issue
Alleged violation of A.R.S. § 33-1805, which governs member access to association records.
Initial Hearing Date
June 5, 2019
Initial Decision Date
July 29, 2019
Rehearing Date
December 11, 2019
Final Decision Date
January 15, 2020
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Key Parties and Individuals
• Petitioner: Joan A. Tober
◦ A homeowner in the Civano 1 Neighborhood since 2001.
◦ Previously worked for the company that developed the land/homes in the association area.
◦ Has served as a past Board member for the HOA.
◦ Served as an alternate member on the Finance Committee in 2018.
◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)
◦ The governing body for the planned community.
◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.
• Adjudicator: Kay Abramsohn
◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.
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Chronology of the Dispute
Nov 20, 2018
At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.
Nov 26, 2018
Petitioner sends her first email request for a copy of the Letter.
Nov 27, 2018
Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.
Nov 29, 2018
At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
Nov 29, 2018
At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.
Dec 13, 2018
Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”
Dec 26, 2018
Petitioner files her single-issue petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.
June 5, 2019
The initial administrative hearing is held.
July 29, 2019
Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.
Aug 5, 2019
Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.
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Core Dispute and Arguments
Petitioner’s Position (Joan A. Tober)
1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”
2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.
3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).
Respondent’s Position (Civano 1 HOA)
1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).
2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.
3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.
4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.
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Key Findings of Fact and Evidence
The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.
• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”
• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.
• Petitioner’s Request and Failure to Clarify:
◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.
◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”
◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”
◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.
• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.
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Legal Rulings and Conclusions of Law
Initial Decision (July 29, 2019)
• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.
• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”
• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.
Final Decision on Rehearing (January 15, 2020)
• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.
• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”
• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”
• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”
• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”
• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.
Study Guide – 19F-H1918042-REL-RHG
Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association
This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.
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Short Answer Quiz
Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.
1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?
2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?
3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?
4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?
5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?
6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?
7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?
8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?
9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.
10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?
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Answer Key
1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”
2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).
3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.
4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.
5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.
6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”
7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.
8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.
9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.
10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.
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Essay Questions
Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.
1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.
2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.
3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.
4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?
5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.
Arizona Department of Real Estate (“the Department”)
The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.
A.R.S. § 33-1805
The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.
Attorney-Client Privilege
A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”
Burden of Proof
The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.
Executive Session
A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.
An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
Office of Administrative Hearings (OAH)
The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.
Petition
The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.
Petitioner
The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.
Preponderance of the Evidence
The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”
Rehearing
A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”
Respondent
The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.
The Letter
The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.
Blog Post – 19F-H1918042-REL-RHG
She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.
Introduction: The Fight for Information
Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.
This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.
1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.
The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”
Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.
The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.
2. Takeaway #2: Asking for “Everything” Can Get You Nothing.
Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.
After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”
In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:
An association is not required to guess what records are being requested.
The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.
3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.
What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.
But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:
Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.
Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.
Conclusion: Strategy Over Sheer Effort
The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.
This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?
Case Participants
Petitioner Side
Joan A. Tober(petitioner) Former Board member; current Finance Committee member
Respondent Side
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C.
Mr. Mastrosimone(Board President) Civano 1 Neighborhood 1 Homeowners Association Testified at rehearing
Neutral Parties
Kay A. Abramsohn(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
c. serrano(Clerk)
Felicia Del Sol(Clerk)
LDettorre(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
AHansen(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
djones(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
DGardner(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
ncano(ADRE staff) Arizona Department of Real Estate Addressed in transmittal
The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.
Key Issues & Findings
HOA violation of requirement to provide association records within ten business days.
Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.
Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Analytics Highlights
Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:
A.R.S. § 33-1805(A)
A.R.S. § 33-1805(B)
A.R.S. § 32-2102
A.R.S. § 32-2199
A.R.S. § 32-2199.05
A.R.S. § 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.
Why this result: The Petitioner failed to meet her burden of proof on both statutory and CC&R violations,.
Key Issues & Findings
HOA's denial of application to install two flagpoles for US and military flags, and alleged failure to follow CC&R appeal process.
Petitioner challenged the HOA's denial of her request to install two flagpoles, arguing the restriction violated A.R.S. § 33-1808 (flag statute) and that the Board failed to provide a written decision on her appeal within 45 days as required by CC&R § 7.9, which she argued meant the request was deemed approved. The ALJ found the single flagpole restriction reasonable under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and determined the Board satisfied the CC&R § 7.9 requirement by posting the decision in the meeting minutes within 45 days,.
Orders: Petitioner's petition is denied, as she failed to establish that the Respondent's Board should not have denied her application under A.R.S. § 33-1808 or CC&R § 7. The Board can properly find Petitioner in violation of Architectural Guidelines and order her to remove one of her two flagpoles.
Joyce H Monsanto(petitioner) Appeared on her own behalf at the hearing and rehearing
Respondent Side
Mark K. Sahl(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP Represented the Respondent
Anthony Nunziato(board president) Four Seasons at the Manor Homeowners Association Board of Directors President of Respondent’s Board of Directors; testified at the hearing and rehearing; also referred to as 'Tony'
Annette McCraw(property manager) Community Manager (Implied Trestle Management) Sent notice regarding windsocks and the written Notice of Disapproval
Marc Vasquez(HOA representative) Addressed Petitioner's claim regarding violation letters compliance during the November 8, 2018 board meeting
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings Administrative Law Judge who issued the decision
Judy Lowe(Commissioner) Arizona Department of Real Estate Received electronic transmission of the decision
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
19F-H1919053-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-11-18
Administrative Law Judge
Diane Mihalsky
Outcome
none
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Joyce H Monsanto
Counsel
—
Respondent
Four Seasons at the Manor Homeowners Association
Counsel
Mark K. Sahl, Esq.
Alleged Violations
A.R.S. § 33-1808; CC&R § 7.9
Outcome Summary
The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.
Why this result: The Petitioner failed to meet her burden of proof on both statutory and CC&R violations,.
Key Issues & Findings
HOA's denial of application to install two flagpoles for US and military flags, and alleged failure to follow CC&R appeal process.
Petitioner challenged the HOA's denial of her request to install two flagpoles, arguing the restriction violated A.R.S. § 33-1808 (flag statute) and that the Board failed to provide a written decision on her appeal within 45 days as required by CC&R § 7.9, which she argued meant the request was deemed approved. The ALJ found the single flagpole restriction reasonable under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and determined the Board satisfied the CC&R § 7.9 requirement by posting the decision in the meeting minutes within 45 days,.
Orders: Petitioner's petition is denied, as she failed to establish that the Respondent's Board should not have denied her application under A.R.S. § 33-1808 or CC&R § 7. The Board can properly find Petitioner in violation of Architectural Guidelines and order her to remove one of her two flagpoles.
Briefing Document: Monsanto v. Four Seasons at the Manor HOA
Executive Summary
This document synthesizes the findings and legal reasoning from the Amended Administrative Law Judge Decision in the case of Joyce H. Monsanto versus the Four Seasons at the Manor Homeowners Association (HOA). The central conflict revolves around the HOA’s denial of Ms. Monsanto’s request to install two separate flagpoles on her home to display the United States flag and the United States Marine Corps flag. The petitioner alleged this denial violated Arizona state law and the HOA’s own governing documents.
The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision established two critical points: first, that the HOA’s rule limiting homeowners to a single flagpole is a “reasonable” regulation on the “placement and manner of display” explicitly permitted under Arizona statute A.R.S. § 33-1808(B), and does not constitute a prohibition of flag display. Second, the HOA was found to have complied with its own appeal process as outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ concluded that an oral denial at a board meeting, later documented in publicly posted meeting minutes, satisfied the CC&R’s requirement to “render its written decision” within a 45-day timeframe. The ruling affirms an HOA’s authority to enforce uniform aesthetic standards, provided they are reasonable and applied according to the association’s governing documents.
Case Background and Procedural History
The case was brought before the Arizona Office of Administrative Hearings (OAH) following a petition filed by homeowner Joyce H. Monsanto (“Petitioner”) against her HOA, Four Seasons at the Manor Homeowners Association (“Respondent”).
• Initial Petition: On March 6, 2019, the Petitioner filed a petition with the Arizona Department of Real Estate, alleging the HOA violated state law (A.R.S. § 33-1803) and its CC&Rs (§ 7.9) by refusing to approve her request for two flagpoles.
• First Hearing: An evidentiary hearing was held on May 30, 2019, after which the ALJ found that the Petitioner had not proven any violation by the HOA.
• Rehearing: The Commissioner of the Department of Real Estate granted the Petitioner’s request for a rehearing on August 22, 2019. This rehearing took place on October 21, 2019.
• Amended Decision: On November 18, 2019, ALJ Diane Mihalsky issued an Amended Administrative Law Judge Decision, again denying the Petitioner’s petition and affirming the previous findings. The amendment was issued to correct a typographical error and clarify the parties’ appeal rights.
The Core Dispute: A Request for Two Flagpoles
The petitioner, whose husband and two sons have long careers in the U.S. Marines and Coast Guard, sought to display both the U.S. flag and the U.S. Marine Corps flag on her home.
• The Application: On August 31, 2018, she submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house, flanking her front door.
• The Rationale: The Petitioner stated her desire for two separate poles was for aesthetic reasons, believing the display would look better. She also expressed concern that a single, larger flagpole installed in her front yard would obstruct the view from her front window.
• The Denial: On September 22, 2018, the HOA’s Architectural Committee issued a written Notice of Disapproval, citing the Architectural Guidelines which permit only one flagpole per lot.
• The Appeal: On October 1, 2018, the Petitioner submitted a written appeal to the HOA Board, arguing the denial was unreasonable, that the guidelines were not uniformly enforced, and that the board could grant a waiver under CC&R § 7.6.
Governing Rules and Statutes
The case decision rested on the interpretation of Arizona state law and the HOA’s specific governing documents.
Arizona Revised Statute § 33-1808
This statute governs the right of homeowners to display certain flags.
• Protection of Display: Subsection A states that an association “shall not prohibit the outdoor… display” of the American flag or a military flag, among others.
• Right to Regulate: Subsection B grants associations the authority to “adopt reasonable rules and regulations regarding the placement and manner of display.” It explicitly allows rules that “regulate the location and size of flagpoles,” “limit the member to displaying no more than two flags at once,” and limit flagpole height, while not prohibiting their installation.
HOA Architectural Guidelines
The community’s rules regarding flagpoles evolved but consistently maintained a key restriction.
• Original Guideline (May 24, 2016): “Poles must not exceed 12’ in height, and only one flagpole is permitted per Lot.”
• Amended Guideline (November 8, 2018): The board increased the maximum pole height to 20′ and added rules for nighttime illumination and inclement weather, but explicitly “did not change the limit of one flagpole per lot.”
HOA CC&Rs (Covenants, Conditions, and Restrictions)
The procedural requirements for architectural review and appeals were central to the Petitioner’s claim.
• Section 7.8 (Board Approval): Pertaining to initial applications, this section requires the Board to provide the owner with a “written response within sixty (60) days,” otherwise the request is deemed approved.
• Section 7.9 (Appeal): Pertaining to appeals, this section requires the Board to consult with the Architectural Committee and “render its written decision” within 45 days. A failure by the Board to render a decision in this period “shall be deemed approval.” This section does not contain the same explicit language as § 7.8 requiring the response be provided to the owner.
Analysis of the Appeal Process and Conflicting Testimonies
A significant portion of the dispute centered on the events of the November 8, 2018, HOA Board meeting, where the Petitioner’s appeal was to be considered. The accounts of what transpired at this meeting were contradictory.
The board did not consult the Architectural Committee.
The board consulted with the Architectural Committee before the meeting.
Decision
The board did not consider or make any decision on her appeal.
The board considered the appeal and made a decision.
Notification
She was never told her appeal was denied at the meeting.
He was certain the board verbally informed the Petitioner that her appeal was denied at the meeting.
On December 4, 2018, draft minutes from the November 8 meeting were posted on the HOA’s website. The Petitioner acknowledged seeing them. These minutes included the following entry:
“[Petitioner’s] last request was for a waiver that would allow her to have two flagpoles on her property (one to fly the American flag and the other to fly the Marine flag). The Board rejected this request since our CC&Rs allow for the flying of both flags on a single flagpole.”
The Petitioner argued that these publicly posted draft minutes, which were not sent directly to her, did not constitute a valid written denial of her appeal under the CC&Rs.
Administrative Law Judge’s Decision and Rationale
The ALJ’s decision methodically rejected each of the Petitioner’s claims, relying on witness credibility, statutory interpretation, and contract construction principles.
Credibility Assessment
The ALJ made a clear determination on the conflicting testimonies regarding the November 8 meeting.
• Mr. Nunziato’s testimony that the board made a decision and informed the Petitioner was found to be “credible and supported by the minutes of the meeting.”
• The Petitioner’s testimony that the board made no decision on her appeal was deemed “incredible.”
Ruling on A.R.S. § 33-1808 (State Flag Law)
The ALJ concluded that the HOA’s one-flagpole rule did not violate state law.
• The rule was found to be a “reasonable rule or regulation under A.R.S. § 33-1808(B).”
• Because the Architectural Guidelines allow for flying two flags from a single flagpole up to 20′ long, the HOA was not prohibiting the display of flags, merely regulating the manner.
• The ALJ characterized the core issue as the “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.”
Ruling on CC&R § 7.9 (Appeal Process)
The ALJ found that the HOA had followed the procedure required by its own CC&Rs.
• Consultation: Based on Mr. Nunziato’s credible testimony, the board fulfilled its duty to consult with the Architectural Committee.
• “Render a Decision”: The board “rendered a decision on her appeal at the November 8, 2018 board meeting” when it orally reached a decision.
• “Written Decision”: The board created a “writing memorializing its decision” by documenting it in the meeting minutes. Because the Petitioner saw these minutes on December 4, 2018, this action occurred within the 45-day window following her October 1, 2018 appeal.
• No Delivery Requirement: The ALJ applied the “negative implication cannon of contract construction.” By comparing CC&R § 7.9 (appeals) with § 7.8 (initial applications), the judge noted that § 7.9 lacks the explicit requirement to provide the written decision to the owner. Therefore, posting the minutes was sufficient, and the Petitioner’s request was not “deemed approved.”
Final Order
Based on these findings, the ALJ issued a final, binding order.
IT IS ORDERED that the Petitioners’ petition is denied because she has not established that the Respondent’s Board should not have denied her application to install two flagpoles on her property.
The decision concludes with a notice informing the parties that the order is binding and that any appeal must be filed with the superior court within 35 days from the date of service.
Study Guide – 19F-H1919053-REL-RHG
Study Guide: Monsanto v. Four Seasons at the Manor HOA
This study guide provides a detailed review of the legal case Joyce H. Monsanto v. Four Seasons at the Manor Homeowners Association, Case No. 19F-H1919053-REL-RHG, as detailed in the Amended Administrative Law Judge Decision dated November 18, 2019. The guide includes a short-answer quiz, a corresponding answer key, suggested essay questions, and a comprehensive glossary of terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based entirely on the information provided in the case document.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner request from the Respondent that initiated this dispute?
3. On what grounds did the Respondent’s Architectural Committee initially deny the Petitioner’s request on September 22, 2018?
4. Identify the key Arizona statute cited in the case and explain its two main provisions regarding flag displays.
5. What was the Petitioner’s primary argument regarding the Respondent’s handling of her appeal under CC&R § 7.9?
6. According to the testimony of Board President Tony Nunziato, how did the Board address the Petitioner’s appeal at the November 8, 2018 meeting?
7. What documentary evidence did the Respondent use to support the claim that a decision on the appeal was made and written down within the required timeframe?
8. Why did the Administrative Law Judge (ALJ) find the Respondent’s one-flagpole rule to be legally permissible?
9. What is the legal standard of proof required for the Petitioner in this case, and did she meet it according to the ALJ?
10. What was the final order issued by the Administrative Law Judge in this case and its practical consequence for the Petitioner?
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Answer Key
1. The Petitioner is Joyce H. Monsanto, a homeowner. The Respondent is the Four Seasons at the Manor Homeowners Association (HOA). Ms. Monsanto is a member of the Respondent HOA because she owns a house within its development in Sun City, Arizona.
2. The Petitioner submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house. She intended to fly the United States flag from one pole and the United States Marine Corps flag from the other.
3. The Architectural Committee denied the request because the community’s Architectural Guidelines only permitted one flagpole per lot. The written Notice of Disapproval explicitly stated this rule as the reason for the denial.
4. The key statute is A.R.S. § 33-1808. Its first provision, § 33-1808(A), prohibits an HOA from banning the display of the American flag and various military flags. The second provision, § 33-1808(B), allows an HOA to adopt reasonable rules regulating the placement, size, and number of flagpoles, explicitly permitting a limit of one flagpole per property.
5. The Petitioner argued that the Board violated CC&R § 7.9 because it failed to provide her with a formal written decision denying her appeal within the 45-day period. She contended that because she never received a dedicated letter, the request should have been “deemed approved” as stipulated in the CC&R for failure to render a timely decision.
6. Tony Nunziato testified that the Board did consult with the Architectural Committee regarding the appeal before the meeting. He stated with certainty that at the November 8, 2018 meeting, the Board considered the appeal and verbally informed Ms. Monsanto that her request for a waiver was denied.
7. The Respondent presented the draft minutes from the November 8, 2018 Board meeting, which were posted on the HOA’s website on December 4, 2018. These minutes explicitly stated that the Board rejected the Petitioner’s request for a waiver to have two flagpoles, fulfilling the requirement to have a written record of the decision within 45 days of her October 1 appeal.
8. The ALJ found the rule permissible because A.R.S. § 33-1808(B) explicitly grants HOAs the authority to “adopt reasonable rules and regulations” which may “regulate the location and size of flagpoles” and “shall not prohibit the installation of a flagpole.” Since the HOA’s guidelines allowed for one flagpole up to 20 feet long, capable of flying two flags, the judge concluded the rule was reasonable under the statute.
9. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that her contention was more probably true than not. The ALJ concluded that the Petitioner did not meet this burden of proof to establish that the Respondent violated any statute or its own CC&Rs.
10. The final order denied the Petitioner’s petition. The practical consequence is that the HOA’s denial of her application for two flagpoles was upheld, and the Board could therefore properly find her in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.
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Suggested Essay Questions
1. Analyze the conflict between A.R.S. § 33-1808(A), which protects a homeowner’s right to display military flags, and § 33-1808(B), which grants HOAs regulatory power. How did the Administrative Law Judge balance these two provisions to reach a conclusion in this case?
2. Discuss the concept of “burden of proof” as it applied to the Petitioner. Detail the specific claims made by Joyce Monsanto and explain why, according to the legal decision, she failed to establish them by a “preponderance of the evidence.”
3. Examine the procedural dispute surrounding CC&R § 7.9. Contrast the Petitioner’s interpretation of a “written decision” with the interpretation ultimately adopted by the Administrative Law Judge, referencing the role of the verbal notification and the meeting minutes.
4. Evaluate the role of testimony and credibility in this administrative hearing. Compare and contrast the testimony provided by Petitioner Joyce Monsanto and Respondent’s Board President Tony Nunziato regarding the events of the November 8, 2018 board meeting, and explain why the judge found Mr. Nunziato’s account more credible.
5. Based on the facts presented, construct an argument that the HOA’s actions, while legally permissible according to the judge, were inconsistent with the patriotic values of its community, which includes many retired military members. Conversely, construct an argument defending the Board’s decision as a necessary and fair application of rules essential for maintaining community standards.
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Glossary of Key Terms
Definition in Context
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, Diane Mihalsky served as the ALJ for the Office of Administrative Hearings.
A.R.S. § 33-1808
An Arizona Revised Statute that governs the display of flags in planned communities. It forbids HOAs from prohibiting certain flags (like the U.S. and military flags) but permits them to establish reasonable rules regarding the number, size, and location of flagpoles.
Architectural Committee
A committee established by the HOA’s CC&Rs responsible for reviewing and approving or disapproving homeowners’ applications for external modifications to their property, such as installing flagpoles.
Architectural Guidelines
The specific rules adopted by the HOA that set forth requirements for property modifications. In this case, the guidelines limited each lot to one flagpole, with a maximum height of 20 feet.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. The Petitioner, Joyce Monsanto, bore the burden of proof to show the HOA had violated the law or its own rules.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing legal documents that create the rules for a planned community. The Petitioner alleged the Respondent violated CC&R § 7.9, which outlines the appeal process for disapproved architectural applications.
Declarant
The original developer of a planned community who establishes the initial CC&Rs. In this case, K. Hovnanian was the Declarant for Four Seasons at the Manor.
Homeowners’ Association (HOA)
The governing organization in a planned community responsible for enforcing the CC&Rs and managing common areas. The Respondent, Four Seasons at the Manor Homeowners Association, is an HOA.
Negative Implication
A principle of legal interpretation which holds that the explicit inclusion of one thing implies the intentional exclusion of another. The ALJ used this to argue that because CC&R § 7.9 (appeals) does not specify that a written decision must be sent to the owner, unlike CC&R § 7.8 (initial applications), that requirement should not be read into the appeal rule.
Office of Administrative Hearings (OAH)
An independent Arizona state agency that conducts evidentiary hearings for other state agencies, providing an impartial forum to resolve disputes.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Joyce H. Monsanto is the Petitioner.
Preponderance of the Evidence
The evidentiary standard required in this civil case. It is defined as proof that convinces the trier of fact (the judge) that a contention is “more probably true than not.”
Respondent
The party against whom a petition is filed. In this case, the Four Seasons at the Manor Homeowners Association is the Respondent.
Restrictive Covenant
A legally enforceable rule within the CC&Rs that limits what a homeowner can do with their property. The rule limiting homes to one flagpole is an example of a restrictive covenant.
Waiver
The act of intentionally relinquishing a known right or claim. The Petitioner argued that the HOA board could, and should, have waived the one-flagpole rule for her under CC&R § 7.6.
Blog Post – 19F-H1919053-REL-RHG
HOA vs. Military Family: 4 Lessons from a Legal Battle Over a Flagpole
For Joyce Monsanto, a member of a dedicated military family, displaying her patriotism was a matter of pride. Her husband served 25 years in the Marines, and her two sons have spent decades in the Marines and the Coast Guard. Naturally, she wanted to fly both the flag of the United States and the flag of the U.S. Marine Corps at her Arizona home. But when she submitted her plan to her Homeowners Association (HOA), she was met with a firm “no.”
The conflict wasn’t about the flags themselves. The Four Seasons at the Manor HOA had no issue with her displaying both. The dispute centered on how she wanted to display them. It was a disagreement over her vision for a symmetrical, two-pole display versus the HOA’s “one flagpole per lot” rule. This architectural dispute escalated from a simple request into a formal administrative hearing.
Ms. Monsanto’s fight reveals several surprising truths about the power of HOA rules and the specific language written into state law. Her case ultimately failed on two fronts—a substantive challenge to the rule itself, and a procedural challenge to how the HOA handled her appeal. Here’s what every homeowner can learn from each.
1. Your Right to Fly the Flag Has Limits—And They’re Written into Law.
Many homeowners believe the right to fly the American flag is unconditional. However, the legal reality is more nuanced. While Arizona law (A.R.S. § 33-1808) prevents an HOA from outright prohibiting the display of U.S. or military flags, it explicitly allows the association to create “reasonable rules and regulations” for their placement and manner of display.
The statute is specific about what these rules can cover. An HOA can legally regulate the size and location of flagpoles and can limit a homeowner to displaying no more than two flags at once. In this case, the HOA’s architectural guidelines permitted two flags, but only on a single flagpole. The Administrative Law Judge found this “one flagpole per lot” rule was a “reasonable” regulation and therefore perfectly legal. To underscore that the HOA’s stance was not about a lack of patriotism, the judge noted testimony that the HOA president himself “placed 140 small flags on his property” for Memorial Day. The issue was about the uniform enforcement of an architectural rule, not the patriotic display itself.
2. Your Personal Taste Is No Match for the Community Rulebook.
During the hearing, Ms. Monsanto acknowledged that she could fly both of her flags from a single pole as the HOA rules allowed. Her reason for wanting two poles was a matter of personal preference. She testified that she “wanted to install two flagpoles for aesthetic reasons” and also felt that a single pole placed in the middle of her lot would block the view from her front window.
The judge was unmoved by this line of reasoning. In the final decision, the response was direct and unambiguous:
Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.
This is a foundational principle of community association law: homeowners trade a degree of personal autonomy for the perceived benefits of uniform standards and predictable property values. The judge’s decision simply reaffirms that bargain. In the world of planned communities, the established rulebook will almost always outweigh an individual’s personal taste.
3. In HOA Law, the Appeal Isn’t a Re-do—It’s a Different Process.
One of Ms. Monsanto’s key arguments was procedural. She believed her appeal should have been automatically approved because the HOA failed to provide a written decision within the 45-day deadline stipulated in its own rules (CC&R § 7.9). This is where the judge identified a subtle but crucial legal distinction buried in the HOA’s governing documents.
The HOA’s CC&Rs had two different sections for architectural requests:
• CC&R § 7.8 (Initial Requests): This section explicitly required the Board to “inform the submitting party of the final decision” with a “written response.”
• CC&R § 7.9 (Appeals): This section, however, only required the Board to “render its written decision” within 45 days.
That small difference in wording—”written response” versus “written decision”—was the linchpin of her procedural case. The judge ruled that for an appeal, the HOA was not required to send a personal letter or direct notice to Ms. Monsanto. It only had to create a written record of its decision within the timeframe.
4. A Post on an HOA Website Can Count as an Official “Written Decision.”
The final surprise came down to what constitutes a “written decision” and how the deadline was met. Ms. Monsanto was waiting for a formal letter informing her that her appeal had been denied. She never received one. Her appeal was filed on October 1, 2018, starting a 45-day clock.
The judge found the HOA satisfied its obligation in a two-step process:
1. The Decision: The Board verbally denied her appeal during its public meeting on November 8, 2018. This action, which occurred 38 days after her appeal, fulfilled the requirement to “render its decision” within the 45-day period.
2. The Writing: That decision was then recorded in the draft meeting minutes, which were posted on the Board’s website on December 4, 2018. Ms. Monsanto acknowledged seeing the posted minutes.
The judge ruled that these online minutes satisfied the separate legal requirement for a “writing memorializing its decision.” Even though they weren’t sent directly to her, the publicly posted minutes served as the official record of the timely denial of her appeal, closing the final door on her argument for automatic approval.
Conclusion: Before You Plant Your Flag, Read the Fine Print
Joyce Monsanto’s case is a cautionary tale on two levels. First, it shows that even cherished rights like displaying the flag are subject to reasonable, neutrally-applied community rules. Second, and more critically, it demonstrates that procedural arguments live and die by the most precise definitions in the governing documents. A single word can be the difference between winning an appeal and being ordered to take your flagpole down.
This case came down to the difference between a “written response” and a “written decision”—do you know what the fine print says about your rights in your community?
Case Participants
Petitioner Side
Joyce H Monsanto(petitioner) Appeared on her own behalf
Respondent Side
Mark K. Sahl(HOA attorney) Carpenter, Hazlewood, Delgado & Bolen, LLP
Anthony Nunziato(board member) Four Seasons at the Manor Homeowners Association President of the Board of Directors; also referred to as 'Tony'
Annette McCraw(property manager) Community Manager/Trestle Management (implied) Sent Notice of Disapproval on behalf of Respondent
Marc Vasquez(HOA representative) Addressed Petitioner's claim regarding violation letters at the Board meeting
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.
Key Issues & Findings
Failure to place a proposed bylaw amendment on the agenda of the annual meeting
Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.
Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1804(B)
Bylaw 1.5
Bylaw 2.2
Analytics Highlights
Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:
A.R.S. § 33-1804(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
Respondent’s Bylaw 1.5
Respondent’s Bylaw 2.2
Video Overview
Audio Overview
Decision Documents
19F-H1919065-REL Decision – 742075.pdf
Uploaded 2025-10-09T03:34:19 (159.4 KB)
Briefing Doc – 19F-H1919065-REL
Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.
The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.
The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.
1. Case Overview
Case Name
Jason West v. Desert Sage Two Homeowners Association
Case Number
19F-H1919065-REL
Jurisdiction
Office of Administrative Hearings (OAH), Arizona
Presiding Judge
Administrative Law Judge Diane Mihalsky
Hearing Date
September 26, 2019
Decision Date
October 1, 2019
Petitioner
Jason West, appearing on his own behalf
Respondent
Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.
Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.
2. The Proposed Bylaw Amendment (Bylaw 3.13)
The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:
Directors whose actions result in a paid claim
In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.
The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.
3. Chronology of the Dispute
• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.
• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”
• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.
• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.
• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.
• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.
• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.
• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.
4. Governing Authorities and Bylaws
The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.
• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”
• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.
• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”
5. Summary of Key Testimony
The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.
• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.
• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.
• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.
6. Historical Context and Prior Litigation
The decision provides context regarding the Petitioner’s previous interactions with the Association.
• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”
• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.
7. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.
• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.
◦ The court found that nothing in the language of A.R.S. § 33-1804(B)requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.
◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.
◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.
• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.
• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.
Study Guide – 19F-H1919065-REL
Study Guide: West v. Desert Sage Two Homeowners Association
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?
3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.
4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?
5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?
6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?
7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?
8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?
9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?
10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?
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Answer Key
1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.
2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.
3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.
4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.
5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.
6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.
7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.
8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.
10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.
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Essay Questions
Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.
1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?
2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?
3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?
4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?
5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.
A.R.S. § 33-1804(B)
An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.
Bylaw 1.5
A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.
Bylaw 2.2
A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.
Department
The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.
Homeowners’ Association
An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).
Office of Administrative Hearings (OAH)
An independent state agency to which the Department refers petitions for an evidentiary hearing.
Petitioner
Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.
Petition
A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.
Preponderance of the evidence
The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Respondent
The Desert Sage Two Homeowners Association, the entity against which the petition was filed.
Restrictive Covenant
A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.
Blog Post – 19F-H1919065-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.
What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?
Edward A. Padilla(property manager) Desert Sage Two Homeowners Association Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
Joanelize Morales(property manager) Desert Sage Two Homeowners Association Property manager since August 2018; testified for Petitioner
Bryan Robert Selna(board member) Desert Sage Two Homeowners Association Current Vice President of Respondent's Board; testified for Petitioner
David Epstein(board member) Desert Sage Two Homeowners Association Current President of Respondent's Board; testified for Petitioner
Linda Maria Seidler(board member) Desert Sage Two Homeowners Association Current Secretary of Respondent's Board; testified for Petitioner
Michael David Latz(property manager) Golden Valley Property Management Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.
Key Issues & Findings
Failure to place a proposed bylaw amendment on the agenda of the annual meeting
Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.
Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1804(B)
Bylaw 1.5
Bylaw 2.2
Analytics Highlights
Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:
A.R.S. § 33-1804(B)
A.R.S. § 32-2199(B)
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
Respondent’s Bylaw 1.5
Respondent’s Bylaw 2.2
Video Overview
Audio Overview
Decision Documents
19F-H1919065-REL Decision – 742075.pdf
Uploaded 2026-01-23T17:29:36 (159.4 KB)
Briefing Doc – 19F-H1919065-REL
Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.
The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.
The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.
1. Case Overview
Case Name
Jason West v. Desert Sage Two Homeowners Association
Case Number
19F-H1919065-REL
Jurisdiction
Office of Administrative Hearings (OAH), Arizona
Presiding Judge
Administrative Law Judge Diane Mihalsky
Hearing Date
September 26, 2019
Decision Date
October 1, 2019
Petitioner
Jason West, appearing on his own behalf
Respondent
Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.
Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.
2. The Proposed Bylaw Amendment (Bylaw 3.13)
The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:
Directors whose actions result in a paid claim
In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.
The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.
3. Chronology of the Dispute
• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.
• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”
• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.
• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.
• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.
• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.
• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.
• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.
4. Governing Authorities and Bylaws
The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.
• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”
• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.
• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”
5. Summary of Key Testimony
The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.
• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.
• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.
• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.
6. Historical Context and Prior Litigation
The decision provides context regarding the Petitioner’s previous interactions with the Association.
• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”
• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.
7. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.
• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.
◦ The court found that nothing in the language of A.R.S. § 33-1804(B)requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.
◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.
◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.
• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.
• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.
Study Guide – 19F-H1919065-REL
Study Guide: West v. Desert Sage Two Homeowners Association
Short-Answer Quiz
Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.
1. Who are the Petitioner and the Respondent in this case, and what is their relationship?
2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?
3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.
4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?
5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?
6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?
7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?
8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?
9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?
10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?
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Answer Key
1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.
2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.
3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.
4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.
5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.
6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.
7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.
8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.
9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.
10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.
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Essay Questions
Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.
1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?
2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?
3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?
4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?
5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.
A.R.S. § 33-1804(B)
An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.
Bylaw 1.5
A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.
Bylaw 2.2
A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.
Department
The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.
Homeowners’ Association
An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).
Office of Administrative Hearings (OAH)
An independent state agency to which the Department refers petitions for an evidentiary hearing.
Petitioner
Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.
Petition
A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.
Preponderance of the evidence
The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Respondent
The Desert Sage Two Homeowners Association, the entity against which the petition was filed.
Restrictive Covenant
A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.
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19F-H1919065-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.
What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?
Edward A. Padilla(property manager) Desert Sage Two Homeowners Association Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
Joanelize Morales(property manager) Desert Sage Two Homeowners Association Property manager since August 2018; testified for Petitioner
Bryan Robert Selna(board member) Desert Sage Two Homeowners Association Current Vice President of Respondent's Board; testified for Petitioner
David Epstein(board member) Desert Sage Two Homeowners Association Current President of Respondent's Board; testified for Petitioner
Linda Maria Seidler(board member) Desert Sage Two Homeowners Association Current Secretary of Respondent's Board; testified for Petitioner
Michael David Latz(property manager) Golden Valley Property Management Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(ADRE Commissioner) Arizona Department of Real Estate
The Petitioner's petition alleging violations of the HOA's CC&Rs and A.R.S. § 33-1803 was denied because the Petitioner failed to meet the burden of proof. The HOA had acknowledged its error regarding the palm trees, issued an apology, and expunged the record, thereby resolving the substantive dispute and making the remaining allegations moot.
Why this result: Petitioner failed to establish that Respondent violated governing documents or statute when the Respondent had already resolved the underlying issue by apology and expungement, and no financial penalties were assessed.
Key Issues & Findings
Violation of Governing Documents and Planned Community Statute
Petitioner filed a two-issue petition alleging Respondent violated CC&Rs and A.R.S. § 33-1803 by fraudulently sending a courtesy notice regarding unapproved palm trees and subsequently deceiving Petitioner, despite the underlying tree issue being resolved and expunged.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199(B)
Title 33, Chapter 16.1
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)
Analytics Highlights
Topics: HOA dispute, Planned Community Statute, CC&Rs violation, Expungement of record, Mootness
Additional Citations:
A.R.S. § 32-2199(B)
Title 33, Chapter 16.1
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)
Video Overview
Audio Overview
Decision Documents
19F-H1919069-REL Decision – 740332.pdf
Uploaded 2025-10-09T03:34:21 (85.6 KB)
Briefing Doc – 19F-H1919069-REL
Briefing Document: Gregory v. Four Seasons at the Manor HOA (Case No. 19F-H1919069-REL)
Executive Summary
This document provides an analysis of the Administrative Law Judge Decision in Case No. 19F-H1919069-REL, concerning a petition filed by homeowner Dennis Gregory against the Four Seasons at the Manor Homeowners Association (HOA). The petition was ultimately denied.
The dispute originated from an incorrect violation notice sent by the HOA on July 13, 2018, regarding palm trees on the Petitioner’s property. The HOA subsequently discovered its error, recognizing the trees were on its “Recommended Plant List.” Consequently, the HOA issued a formal apology to the Petitioner on August 16, 2018, and expunged the violation notice from all records. No fines or penalties were ever imposed.
Despite the resolution, the Petitioner filed a formal dispute petition with the Arizona Department of Real Estate on May 24, 2019. He alleged the initial notice was fraudulent and that an employee of the HOA’s management company had lied and threatened him. The Administrative Law Judge, Antara Nath Rivera, concluded that the Petitioner failed to meet the burden of proof. The Judge determined that the HOA’s prompt corrective actions—issuing an apology, retracting the notice, and imposing no fines—rendered the issue moot.
Case Overview
The hearing addressed a petition filed by Dennis Gregory alleging that the Four Seasons at the Manor Homeowners Association violated its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.
Case Detail
Information
Case Number
19F-H1919069-REL
Petitioner
Dennis J Gregory
Respondent
Four Seasons at the Manor Homeowners Association
Presiding Judge
Antara Nath Rivera, Administrative Law Judge
Hearing Date
September 4, 2019
Decision Date
September 24, 2019
Chronology of Events
• July 13, 2018: The HOA sends a courtesy notice to Dennis Gregory requesting the removal of palm trees, citing a violation of the CC&Rs.
• Post-July 13, 2018: Gregory disputes the violation. Upon review, the HOA discovers the palm trees are on its “Recommended Plant List” and therefore permissible.
• August 16, 2018: The HOA sends Gregory a letter of apology via both email and postal mail, deeming the violation notice invalid.
• May 24, 2019: Gregory files a two-issue Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate.
• June 28, 2019: The HOA files its formal answer to the petition.
• September 4, 2019: An administrative hearing is conducted, with testimony from Gregory and Marc Vasquez, Vice President of the HOA’s management company.
• September 24, 2019: The Administrative Law Judge issues a decision denying the petition.
Petitioner’s Allegations and Testimony
Dennis Gregory filed the petition after the palm tree issue was resolved because he was upset with the HOA’s handling of the matter. His testimony and allegations included:
• Primary Motivation: He believed the HOA “fraudulently sent the courtesy letter.”
• Allegations of Deception:
◦ The HOA lied about the Board members discussing the palm tree issue prior to sending the notice.
◦ Annette McCraw of Trestle Management Group lied to him about speaking with the board.
◦ The HOA deceptively changed the CC&Rs regarding the names of permitted trees.
◦ The HOA failed to disclose the identity of the individual who falsely claimed his palm trees were poisonous.
• Allegations of Misconduct: He stated that Annette McCraw had threatened him with a lawyer.
• Legal Claim: He opined that these actions constituted a violation of the community’s CC&Rs (specifically 8.1.7) and Arizona Revised Statutes § 33-1803.
• Acknowledged Facts: During his testimony, Gregory confirmed that the HOA never imposed any fines and that he received the apology letter issued on August 16, 2018.
Respondent’s Position and Actions
The HOA, represented by Marc Vasquez of Trestle Management Group, maintained that it had taken all necessary steps to rectify its initial error.
• Admission of Error: The Respondent acknowledged that the initial violation notice was sent in error.
• Corrective Measures:
◦ It issued a formal apology letter once the mistake was identified.
◦ The courtesy letter was “removed and expunged” from both the Respondent’s and Petitioner’s records to preserve the Petitioner’s good standing.
◦ Marc Vasquez personally apologized to Gregory at a board meeting.
• No Penalties: The Respondent confirmed that no fines or sanctions were ever imposed on the Petitioner.
• Personnel Status: Vasquez testified that Annette McCraw, the employee accused of misconduct by the Petitioner, was no longer employed by Trestle Management Group.
Administrative Law Judge’s Conclusions and Order
The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove his case by a preponderance of the evidence.
Legal Reasoning
1. Burden of Proof: The decision established that the Petitioner bore the burden of proving that the HOA violated its CC&Rs and state statutes. The standard of proof required was a “preponderance of the evidence,” meaning evidence sufficient to convince a trier of fact that a contention is more probably true than not.
2. Failure to Meet Burden: The Judge concluded that the Petitioner failed to meet this standard. This conclusion was based on several key facts established during the hearing:
◦ The Petitioner himself acknowledged that he was never financially penalized.
◦ The Petitioner acknowledged receipt of the HOA’s apology letter.
◦ Evidence showed the palm trees were, in fact, compliant with HOA rules.
◦ The violation notice was officially “removed and expunged” from all records.
3. Mootness of the Issue: The decision states, “the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.” The HOA’s corrective actions effectively nullified the original dispute before it escalated to the point of requiring legal sanctions.
Final Order
“IT IS ORDERED that Petitioners’ petition is denied.”
The decision also included a notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 41-1092.09.
Study Guide – 19F-H1919069-REL
Study Guide: Gregory v. Four Seasons at the Manor HOA
This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 19F-H1919069-REL, concerning Dennis J Gregory and the Four Seasons at the Manor Homeowners Association. It includes short-answer questions with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal decision.
Quiz: Short-Answer Questions
Answer the following questions in two to three complete sentences, using only information found in the case decision.
1. Who were the primary parties involved in this administrative hearing, and what were their roles?
2. What was the initial action by the Homeowners Association that triggered the dispute with the Petitioner?
3. What specific violations did the Petitioner, Dennis Gregory, allege in his Homeowners Association Dispute Process Petition?
4. How did the Respondent discover its error regarding the Petitioner’s palm trees?
5. What two specific actions did the Respondent take to rectify its error before the hearing took place?
6. Why did the Petitioner proceed with the hearing even after the Respondent retracted the violation notice and apologized?
7. Who was Annette McCraw, and what specific actions did the Petitioner accuse her of taking?
8. What is the “preponderance of the evidence,” and what was its significance in the judge’s decision?
9. According to the judge’s findings, why was the central issue of the dispute considered moot?
10. What was the final Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties were Dennis J Gregory, the homeowner, who served as the Petitioner, and the Four Seasons at the Manor Homeowners Association, which was the Respondent. Marc Vasquez, vice president of Trestle Management Group, appeared on behalf of the Respondent.
2. The dispute was triggered when the Respondent, on July 13, 2018, sent the Petitioner a courtesy notice requesting the removal of palm trees from his front yard. The notice claimed the trees were a violation of the association’s CC&Rs.
3. The Petitioner alleged that the Respondent violated section 8.1.7 of its Covenants, Conditions, and Restrictions (CC&Rs) and the Arizona Revised Statute (A.R.S.) § 33-1803.
4. After the Petitioner disputed the violation, the Respondent conducted a further review. Through this review, the Respondent discovered that the palm trees on the Petitioner’s property were actually listed on the “Recommended Plant List” and were therefore acceptable.
5. First, the Respondent issued a courtesy letter to the Petitioner on August 16, 2018, apologizing for the misunderstanding. Second, the Respondent deemed the original violation notice invalid and had it “removed and expunged” from both its own and the Petitioner’s records to preserve his good standing.
6. The Petitioner proceeded with the hearing because he was upset and believed the Respondent had acted fraudulently. He alleged the Respondent lied about discussing the issue with board members, deceptively changed the CC&Rs, and failed to disclose who made the initial complaint.
7. Annette McCraw was an employee of Trestle Management Group, the Respondent’s management company. The Petitioner accused her of lying about speaking with board members regarding the palm tree issue and threatening him with a lawyer.
8. “Preponderance of the evidence” is the standard of proof required, defined as evidence convincing the trier of fact that a contention is more probably true than not. Its significance is that the Petitioner bore this burden of proof and ultimately failed to meet it, leading to the denial of his petition.
9. The issue was considered moot because the Respondent had already issued an apology letter and rescinded the violation notice before the hearing occurred. Since the Petitioner was never fined, the palm trees were deemed acceptable, and the notice was expunged, there was no longer an active controversy for the court to resolve.
10. The final Order, issued on September 24, 2019, was that the Petitioner’s petition is denied. The Order was binding unless a rehearing was requested within 30 days.
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Essay Questions
Construct detailed responses to the following prompts, drawing evidence and arguments exclusively from the provided legal decision.
1. Analyze the concept of a “moot” issue as it applies to this case. How did the Respondent’s actions before the hearing render the Petitioner’s primary complaint moot in the eyes of the law, despite the Petitioner’s ongoing grievances?
2. Discuss the burden of proof in this administrative hearing. Explain the “preponderance of the evidence” standard as defined in the document and detail the specific reasons why the Administrative Law Judge concluded that Dennis Gregory failed to meet this burden.
3. Examine the roles and conduct of the management company, Trestle Management Group, and its employee, Annette McCraw. Based on the testimony presented, what specific actions escalated the conflict even after the initial landscaping error was identified and corrected?
4. Trace the timeline of events from the initial “courtesy notice” of July 13, 2018, to the final Order of September 24, 2019. Identify the key turning points and decisions made by both the Petitioner and the Respondent that influenced the outcome of the case.
5. Although the Petitioner lost the case, he raised several allegations beyond the palm trees, including fraud, deception, and threats. Using only the evidence presented in the decision, construct the argument that Dennis Gregory was attempting to make regarding why these subsequent actions constituted a violation of the planned community statute, even if the original tree issue was resolved.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the administrative hearing and issues a decision. In this case, the ALJ was Antara Nath Rivera.
Answer
The Respondent’s formal written response to the Petition, filed in this case on June 28, 2019.
A.R.S. (Arizona Revised Statutes)
The collection of laws for the state of Arizona. The decision cites A.R.S. § 33-1803, which authorizes HOAs to enforce CC&Rs, and statutes governing the hearing and rehearing process.
Burden of Proof
The obligation of a party to establish its claims by a required degree of evidence. In this hearing, the Petitioner had the burden of proof.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents that establish the rules for a planned community. The Petitioner alleged a violation of section 8.1.7 of the Respondent’s CC&Rs.
Department
The Arizona Department of Real Estate, the state agency with which the Petition was filed and which has jurisdiction over such disputes.
Homeowners Association Dispute Process Petition (Petition)
The formal document filed by a homeowner to initiate a hearing with the Department concerning alleged violations by their homeowners association.
A legal term for a situation where the underlying issue has been resolved, making any ruling on the matter unnecessary. The judge found the case moot because the Respondent had already issued an apology and rescinded the violation notice.
The final and binding decision issued by the Administrative Law Judge. In this case, the Order was to deny the Petitioner’s petition.
Petitioner
The party who initiates a legal action or hearing. In this case, the Petitioner was homeowner Dennis J Gregory.
Preponderance of the Evidence
The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond. In this case, the Respondent was the Four Seasons at the Manor Homeowners Association.
Trestle Management Group, LLC
The management company employed by the Respondent HOA to handle its operations.
Blog Post – 19F-H1919069-REL
An HOA Admitted It Was Wrong. The Homeowner Sued Anyway—And Lost. Here Are the Surprising Reasons Why.
Introduction: The Familiar Dread of an HOA Letter
For many homeowners, few things cause a spike of anxiety quite like a formal notice from their Homeowners Association (HOA). That crisp envelope often contains a violation notice, sparking a frustrating process of proving compliance or making unwanted changes. But what happens when you prove the HOA was completely wrong, they admit their mistake, and issue a full apology? For most, that’s the end of the story—a clear victory.
This, however, is the story of a homeowner who achieved that victory and then decided to take the HOA to a formal hearing anyway. He had been proven right, the violation was erased, and no fines were ever issued. Yet, he pursued the case and ultimately lost.
How could someone who was proven right end up losing their case? The answer reveals a critical distinction between winning an argument and winning in a court of law.
1. You Can Win the Argument, But Still Lose the Case
The initial dispute was straightforward. The homeowner, Dennis Gregory, received a courtesy notice from his HOA requesting the removal of palm trees from his front yard, which were alleged to be in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
Mr. Gregory disputed the violation. In response, the HOA conducted a further review and made a critical discovery: the palm trees on the property were, in fact, listed on the HOA’s own “Recommended Plant List” and were perfectly acceptable. The HOA had made a mistake. Here, however, the story takes a surprising turn. Mr. Gregory filed his formal petition for a hearing after the HOA had already admitted its error, apologized, and confirmed the issue was resolved.
This sequence of events is the crucial detail of the case. The legal dispute wasn’t about the palm trees—that argument was already won. The case was about the actions taken after the HOA’s error was acknowledged and corrected.
2. A Proactive Apology Can Be a Powerful Legal Shield
Once the HOA realized its mistake, it took several decisive steps to remedy the situation. According to the Administrative Law Judge’s findings, the HOA and its management company:
• Sent a formal apology letter to the homeowner.
• Confirmed the original courtesy notice was “deemed invalid.”
• “Removed and expunged” the violation from the homeowner’s records to preserve his good standing.
• Never issued any fines or financial penalties.
• Took action regarding personnel, as the employee who the homeowner accused of making threats was no longer with the management company by the time of the hearing.
These corrective actions had a profound legal impact. The judge found that because the HOA had already reversed its initial notice, apologized, cleared the homeowner’s record, and addressed the personnel issue, there was no longer an active dispute to rule on. The issue was considered “moot.”
This conclusion was emphasized in the judge’s final decision:
Furthermore, the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.
3. The Law Requires Proof, Not Just Principle
The homeowner’s petition wasn’t just about the palm trees. He testified that he proceeded with the case because he felt he had been wronged by an HOA management employee during the dispute. His petition alleged the HOA had “fraudulently sent the courtesy letter,” lied about discussing the issue with board members, and even “threatened him with a lawyer.” He wasn’t just seeking to correct the record on his landscaping; he was fighting on a matter of principle.
To win his case, however, the homeowner had to meet a specific legal standard: proving his claims by “a preponderance of the evidence.” In simple terms, this means showing that his version of events was more likely to be true than not.
Ultimately, the judge concluded that the homeowner “failed to establish, by a preponderance of the evidence, that Respondent violated the CC&Rs.” This outcome highlights a crucial legal reality: tangible, documented evidence—such as a formal apology letter and an expunged record—often carries more evidentiary weight than a homeowner’s testimony about verbal statements, which can be viewed as a ‘he said, she said’ dispute without additional proof. While the homeowner may have genuinely felt wronged, his feelings could not overcome the HOA’s documented resolution.
Conclusion: A Cautionary Tale for Homeowners and HOAs
The outcome of this dispute offers a powerful lesson for both homeowners and association boards. It demonstrates three core takeaways: a dispute isn’t over until it’s legally resolved, a swift and comprehensive apology can be an effective legal defense, and a deeply felt principle must still be backed by sufficient evidence to prevail in a formal hearing.
This case serves as a fascinating reminder of the complexities of community disputes, leaving us with a final question: At what point does the fight for principle risk overshadowing a practical victory?
Case Participants
Petitioner Side
Dennis J Gregory(petitioner) Appeared and testified on own behalf
Respondent Side
Marc Vasquez(attorney) Trestle Management Group Appeared for Respondent; testified as vice president of Trestle
Annette McCraw(property manager) Trestle Management Group, LLC Issued letter on behalf of Respondent; no longer with Trestle
James A. Baska(management representative) Trestle Management Group Recipient of decision transmission
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Addressed in transmission of decision
The Petitioner's petition alleging violations of the HOA's CC&Rs and A.R.S. § 33-1803 was denied because the Petitioner failed to meet the burden of proof. The HOA had acknowledged its error regarding the palm trees, issued an apology, and expunged the record, thereby resolving the substantive dispute and making the remaining allegations moot.
Why this result: Petitioner failed to establish that Respondent violated governing documents or statute when the Respondent had already resolved the underlying issue by apology and expungement, and no financial penalties were assessed.
Key Issues & Findings
Violation of Governing Documents and Planned Community Statute
Petitioner filed a two-issue petition alleging Respondent violated CC&Rs and A.R.S. § 33-1803 by fraudulently sending a courtesy notice regarding unapproved palm trees and subsequently deceiving Petitioner, despite the underlying tree issue being resolved and expunged.
Orders: Petitioner's petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199(B)
Title 33, Chapter 16.1
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)
Analytics Highlights
Topics: HOA dispute, Planned Community Statute, CC&Rs violation, Expungement of record, Mootness
Additional Citations:
A.R.S. § 32-2199(B)
Title 33, Chapter 16.1
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)
Video Overview
Audio Overview
Decision Documents
19F-H1919069-REL Decision – 740332.pdf
Uploaded 2026-01-23T17:29:41 (85.6 KB)
Briefing Doc – 19F-H1919069-REL
Briefing Document: Gregory v. Four Seasons at the Manor HOA (Case No. 19F-H1919069-REL)
Executive Summary
This document provides an analysis of the Administrative Law Judge Decision in Case No. 19F-H1919069-REL, concerning a petition filed by homeowner Dennis Gregory against the Four Seasons at the Manor Homeowners Association (HOA). The petition was ultimately denied.
The dispute originated from an incorrect violation notice sent by the HOA on July 13, 2018, regarding palm trees on the Petitioner’s property. The HOA subsequently discovered its error, recognizing the trees were on its “Recommended Plant List.” Consequently, the HOA issued a formal apology to the Petitioner on August 16, 2018, and expunged the violation notice from all records. No fines or penalties were ever imposed.
Despite the resolution, the Petitioner filed a formal dispute petition with the Arizona Department of Real Estate on May 24, 2019. He alleged the initial notice was fraudulent and that an employee of the HOA’s management company had lied and threatened him. The Administrative Law Judge, Antara Nath Rivera, concluded that the Petitioner failed to meet the burden of proof. The Judge determined that the HOA’s prompt corrective actions—issuing an apology, retracting the notice, and imposing no fines—rendered the issue moot.
Case Overview
The hearing addressed a petition filed by Dennis Gregory alleging that the Four Seasons at the Manor Homeowners Association violated its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.
Case Detail
Information
Case Number
19F-H1919069-REL
Petitioner
Dennis J Gregory
Respondent
Four Seasons at the Manor Homeowners Association
Presiding Judge
Antara Nath Rivera, Administrative Law Judge
Hearing Date
September 4, 2019
Decision Date
September 24, 2019
Chronology of Events
• July 13, 2018: The HOA sends a courtesy notice to Dennis Gregory requesting the removal of palm trees, citing a violation of the CC&Rs.
• Post-July 13, 2018: Gregory disputes the violation. Upon review, the HOA discovers the palm trees are on its “Recommended Plant List” and therefore permissible.
• August 16, 2018: The HOA sends Gregory a letter of apology via both email and postal mail, deeming the violation notice invalid.
• May 24, 2019: Gregory files a two-issue Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate.
• June 28, 2019: The HOA files its formal answer to the petition.
• September 4, 2019: An administrative hearing is conducted, with testimony from Gregory and Marc Vasquez, Vice President of the HOA’s management company.
• September 24, 2019: The Administrative Law Judge issues a decision denying the petition.
Petitioner’s Allegations and Testimony
Dennis Gregory filed the petition after the palm tree issue was resolved because he was upset with the HOA’s handling of the matter. His testimony and allegations included:
• Primary Motivation: He believed the HOA “fraudulently sent the courtesy letter.”
• Allegations of Deception:
◦ The HOA lied about the Board members discussing the palm tree issue prior to sending the notice.
◦ Annette McCraw of Trestle Management Group lied to him about speaking with the board.
◦ The HOA deceptively changed the CC&Rs regarding the names of permitted trees.
◦ The HOA failed to disclose the identity of the individual who falsely claimed his palm trees were poisonous.
• Allegations of Misconduct: He stated that Annette McCraw had threatened him with a lawyer.
• Legal Claim: He opined that these actions constituted a violation of the community’s CC&Rs (specifically 8.1.7) and Arizona Revised Statutes § 33-1803.
• Acknowledged Facts: During his testimony, Gregory confirmed that the HOA never imposed any fines and that he received the apology letter issued on August 16, 2018.
Respondent’s Position and Actions
The HOA, represented by Marc Vasquez of Trestle Management Group, maintained that it had taken all necessary steps to rectify its initial error.
• Admission of Error: The Respondent acknowledged that the initial violation notice was sent in error.
• Corrective Measures:
◦ It issued a formal apology letter once the mistake was identified.
◦ The courtesy letter was “removed and expunged” from both the Respondent’s and Petitioner’s records to preserve the Petitioner’s good standing.
◦ Marc Vasquez personally apologized to Gregory at a board meeting.
• No Penalties: The Respondent confirmed that no fines or sanctions were ever imposed on the Petitioner.
• Personnel Status: Vasquez testified that Annette McCraw, the employee accused of misconduct by the Petitioner, was no longer employed by Trestle Management Group.
Administrative Law Judge’s Conclusions and Order
The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove his case by a preponderance of the evidence.
Legal Reasoning
1. Burden of Proof: The decision established that the Petitioner bore the burden of proving that the HOA violated its CC&Rs and state statutes. The standard of proof required was a “preponderance of the evidence,” meaning evidence sufficient to convince a trier of fact that a contention is more probably true than not.
2. Failure to Meet Burden: The Judge concluded that the Petitioner failed to meet this standard. This conclusion was based on several key facts established during the hearing:
◦ The Petitioner himself acknowledged that he was never financially penalized.
◦ The Petitioner acknowledged receipt of the HOA’s apology letter.
◦ Evidence showed the palm trees were, in fact, compliant with HOA rules.
◦ The violation notice was officially “removed and expunged” from all records.
3. Mootness of the Issue: The decision states, “the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.” The HOA’s corrective actions effectively nullified the original dispute before it escalated to the point of requiring legal sanctions.
Final Order
“IT IS ORDERED that Petitioners’ petition is denied.”
The decision also included a notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 41-1092.09.
Study Guide – 19F-H1919069-REL
Study Guide: Gregory v. Four Seasons at the Manor HOA
This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 19F-H1919069-REL, concerning Dennis J Gregory and the Four Seasons at the Manor Homeowners Association. It includes short-answer questions with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal decision.
Quiz: Short-Answer Questions
Answer the following questions in two to three complete sentences, using only information found in the case decision.
1. Who were the primary parties involved in this administrative hearing, and what were their roles?
2. What was the initial action by the Homeowners Association that triggered the dispute with the Petitioner?
3. What specific violations did the Petitioner, Dennis Gregory, allege in his Homeowners Association Dispute Process Petition?
4. How did the Respondent discover its error regarding the Petitioner’s palm trees?
5. What two specific actions did the Respondent take to rectify its error before the hearing took place?
6. Why did the Petitioner proceed with the hearing even after the Respondent retracted the violation notice and apologized?
7. Who was Annette McCraw, and what specific actions did the Petitioner accuse her of taking?
8. What is the “preponderance of the evidence,” and what was its significance in the judge’s decision?
9. According to the judge’s findings, why was the central issue of the dispute considered moot?
10. What was the final Order issued by the Administrative Law Judge in this case?
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Answer Key
1. The primary parties were Dennis J Gregory, the homeowner, who served as the Petitioner, and the Four Seasons at the Manor Homeowners Association, which was the Respondent. Marc Vasquez, vice president of Trestle Management Group, appeared on behalf of the Respondent.
2. The dispute was triggered when the Respondent, on July 13, 2018, sent the Petitioner a courtesy notice requesting the removal of palm trees from his front yard. The notice claimed the trees were a violation of the association’s CC&Rs.
3. The Petitioner alleged that the Respondent violated section 8.1.7 of its Covenants, Conditions, and Restrictions (CC&Rs) and the Arizona Revised Statute (A.R.S.) § 33-1803.
4. After the Petitioner disputed the violation, the Respondent conducted a further review. Through this review, the Respondent discovered that the palm trees on the Petitioner’s property were actually listed on the “Recommended Plant List” and were therefore acceptable.
5. First, the Respondent issued a courtesy letter to the Petitioner on August 16, 2018, apologizing for the misunderstanding. Second, the Respondent deemed the original violation notice invalid and had it “removed and expunged” from both its own and the Petitioner’s records to preserve his good standing.
6. The Petitioner proceeded with the hearing because he was upset and believed the Respondent had acted fraudulently. He alleged the Respondent lied about discussing the issue with board members, deceptively changed the CC&Rs, and failed to disclose who made the initial complaint.
7. Annette McCraw was an employee of Trestle Management Group, the Respondent’s management company. The Petitioner accused her of lying about speaking with board members regarding the palm tree issue and threatening him with a lawyer.
8. “Preponderance of the evidence” is the standard of proof required, defined as evidence convincing the trier of fact that a contention is more probably true than not. Its significance is that the Petitioner bore this burden of proof and ultimately failed to meet it, leading to the denial of his petition.
9. The issue was considered moot because the Respondent had already issued an apology letter and rescinded the violation notice before the hearing occurred. Since the Petitioner was never fined, the palm trees were deemed acceptable, and the notice was expunged, there was no longer an active controversy for the court to resolve.
10. The final Order, issued on September 24, 2019, was that the Petitioner’s petition is denied. The Order was binding unless a rehearing was requested within 30 days.
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Essay Questions
Construct detailed responses to the following prompts, drawing evidence and arguments exclusively from the provided legal decision.
1. Analyze the concept of a “moot” issue as it applies to this case. How did the Respondent’s actions before the hearing render the Petitioner’s primary complaint moot in the eyes of the law, despite the Petitioner’s ongoing grievances?
2. Discuss the burden of proof in this administrative hearing. Explain the “preponderance of the evidence” standard as defined in the document and detail the specific reasons why the Administrative Law Judge concluded that Dennis Gregory failed to meet this burden.
3. Examine the roles and conduct of the management company, Trestle Management Group, and its employee, Annette McCraw. Based on the testimony presented, what specific actions escalated the conflict even after the initial landscaping error was identified and corrected?
4. Trace the timeline of events from the initial “courtesy notice” of July 13, 2018, to the final Order of September 24, 2019. Identify the key turning points and decisions made by both the Petitioner and the Respondent that influenced the outcome of the case.
5. Although the Petitioner lost the case, he raised several allegations beyond the palm trees, including fraud, deception, and threats. Using only the evidence presented in the decision, construct the argument that Dennis Gregory was attempting to make regarding why these subsequent actions constituted a violation of the planned community statute, even if the original tree issue was resolved.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over the administrative hearing and issues a decision. In this case, the ALJ was Antara Nath Rivera.
Answer
The Respondent’s formal written response to the Petition, filed in this case on June 28, 2019.
A.R.S. (Arizona Revised Statutes)
The collection of laws for the state of Arizona. The decision cites A.R.S. § 33-1803, which authorizes HOAs to enforce CC&Rs, and statutes governing the hearing and rehearing process.
Burden of Proof
The obligation of a party to establish its claims by a required degree of evidence. In this hearing, the Petitioner had the burden of proof.
CC&Rs (Covenants, Conditions, and Restrictions)
The governing documents that establish the rules for a planned community. The Petitioner alleged a violation of section 8.1.7 of the Respondent’s CC&Rs.
Department
The Arizona Department of Real Estate, the state agency with which the Petition was filed and which has jurisdiction over such disputes.
Homeowners Association Dispute Process Petition (Petition)
The formal document filed by a homeowner to initiate a hearing with the Department concerning alleged violations by their homeowners association.
A legal term for a situation where the underlying issue has been resolved, making any ruling on the matter unnecessary. The judge found the case moot because the Respondent had already issued an apology and rescinded the violation notice.
The final and binding decision issued by the Administrative Law Judge. In this case, the Order was to deny the Petitioner’s petition.
Petitioner
The party who initiates a legal action or hearing. In this case, the Petitioner was homeowner Dennis J Gregory.
Preponderance of the Evidence
The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond. In this case, the Respondent was the Four Seasons at the Manor Homeowners Association.
Trestle Management Group, LLC
The management company employed by the Respondent HOA to handle its operations.
Blog Post – 19F-H1919069-REL
An HOA Admitted It Was Wrong. The Homeowner Sued Anyway—And Lost. Here Are the Surprising Reasons Why.
Introduction: The Familiar Dread of an HOA Letter
For many homeowners, few things cause a spike of anxiety quite like a formal notice from their Homeowners Association (HOA). That crisp envelope often contains a violation notice, sparking a frustrating process of proving compliance or making unwanted changes. But what happens when you prove the HOA was completely wrong, they admit their mistake, and issue a full apology? For most, that’s the end of the story—a clear victory.
This, however, is the story of a homeowner who achieved that victory and then decided to take the HOA to a formal hearing anyway. He had been proven right, the violation was erased, and no fines were ever issued. Yet, he pursued the case and ultimately lost.
How could someone who was proven right end up losing their case? The answer reveals a critical distinction between winning an argument and winning in a court of law.
1. You Can Win the Argument, But Still Lose the Case
The initial dispute was straightforward. The homeowner, Dennis Gregory, received a courtesy notice from his HOA requesting the removal of palm trees from his front yard, which were alleged to be in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs).
Mr. Gregory disputed the violation. In response, the HOA conducted a further review and made a critical discovery: the palm trees on the property were, in fact, listed on the HOA’s own “Recommended Plant List” and were perfectly acceptable. The HOA had made a mistake. Here, however, the story takes a surprising turn. Mr. Gregory filed his formal petition for a hearing after the HOA had already admitted its error, apologized, and confirmed the issue was resolved.
This sequence of events is the crucial detail of the case. The legal dispute wasn’t about the palm trees—that argument was already won. The case was about the actions taken after the HOA’s error was acknowledged and corrected.
2. A Proactive Apology Can Be a Powerful Legal Shield
Once the HOA realized its mistake, it took several decisive steps to remedy the situation. According to the Administrative Law Judge’s findings, the HOA and its management company:
• Sent a formal apology letter to the homeowner.
• Confirmed the original courtesy notice was “deemed invalid.”
• “Removed and expunged” the violation from the homeowner’s records to preserve his good standing.
• Never issued any fines or financial penalties.
• Took action regarding personnel, as the employee who the homeowner accused of making threats was no longer with the management company by the time of the hearing.
These corrective actions had a profound legal impact. The judge found that because the HOA had already reversed its initial notice, apologized, cleared the homeowner’s record, and addressed the personnel issue, there was no longer an active dispute to rule on. The issue was considered “moot.”
This conclusion was emphasized in the judge’s final decision:
Furthermore, the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.
3. The Law Requires Proof, Not Just Principle
The homeowner’s petition wasn’t just about the palm trees. He testified that he proceeded with the case because he felt he had been wronged by an HOA management employee during the dispute. His petition alleged the HOA had “fraudulently sent the courtesy letter,” lied about discussing the issue with board members, and even “threatened him with a lawyer.” He wasn’t just seeking to correct the record on his landscaping; he was fighting on a matter of principle.
To win his case, however, the homeowner had to meet a specific legal standard: proving his claims by “a preponderance of the evidence.” In simple terms, this means showing that his version of events was more likely to be true than not.
Ultimately, the judge concluded that the homeowner “failed to establish, by a preponderance of the evidence, that Respondent violated the CC&Rs.” This outcome highlights a crucial legal reality: tangible, documented evidence—such as a formal apology letter and an expunged record—often carries more evidentiary weight than a homeowner’s testimony about verbal statements, which can be viewed as a ‘he said, she said’ dispute without additional proof. While the homeowner may have genuinely felt wronged, his feelings could not overcome the HOA’s documented resolution.
Conclusion: A Cautionary Tale for Homeowners and HOAs
The outcome of this dispute offers a powerful lesson for both homeowners and association boards. It demonstrates three core takeaways: a dispute isn’t over until it’s legally resolved, a swift and comprehensive apology can be an effective legal defense, and a deeply felt principle must still be backed by sufficient evidence to prevail in a formal hearing.
This case serves as a fascinating reminder of the complexities of community disputes, leaving us with a final question: At what point does the fight for principle risk overshadowing a practical victory?
Case Participants
Petitioner Side
Dennis J Gregory(petitioner) Appeared and testified on own behalf
Respondent Side
Marc Vasquez(attorney) Trestle Management Group Appeared for Respondent; testified as vice president of Trestle
Annette McCraw(property manager) Trestle Management Group, LLC Issued letter on behalf of Respondent; no longer with Trestle
James A. Baska(management representative) Trestle Management Group Recipient of decision transmission
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Addressed in transmission of decision
CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)
Outcome Summary
The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.
Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).
Key Issues & Findings
Alleged violation by HOA approving a block wall built by neighbors (Hendersons)
Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.
Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01(A)(1)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Analytics Highlights
Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)
Outcome Summary
The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.
Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).
Key Issues & Findings
Alleged violation by HOA approving a block wall built by neighbors (Hendersons)
Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.
Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199.01(A)(1)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Analytics Highlights
Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
