Erik R. Pierce v. Sierra Morado Community Association

Posted on February 9, 2021 by [email protected]

Case Summary

Case ID	20F-H2020053-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-02-10
Administrative Law Judge	Adam D. Stone
Outcome	The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Erik R. Pierce	Counsel	James C. Frisch
Respondent	Sierra Morado Community Association	Counsel	Nicholas C.S. Nogami and Heather M. Hampstead

Alleged Violations

Article 11, Section 11.1

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Respondent HOA did not violate CC&R Section 11.1 because that section grants the Board discretion, rather than a mandatory obligation, in the timing of enforcement actions.

Why this result: The Petitioner failed to meet the burden of proof to establish that the Respondent violated CC&R Section 11.1, as the ALJ found the Board's decision to temporarily delay enforcement pending litigation and settlement discussions fell within the discretion granted by the CC&R.

Key Issues & Findings

Failure of HOA to Enforce Architectural Approval Conditions (Hot Tub Screening)

Petitioner alleged that the HOA failed to enforce the mandatory installation of a pergola and screening around a neighbor's hot tub, a condition imposed by the Architectural Review Committee when retroactively approving the installation.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199(B)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
CC&R Article 11, Section 11.1
CC&R Article 4, Section 4.27

Analytics Highlights

Topics: HOA Enforcement, CC&R Dispute, Architectural Control, Discretionary Enforcement

Additional Citations:

A.R.S. § 32-2199(B)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.07(G)(2)
A.R.S. § 41-1092.09
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R Article 4, Section 4.27
CC&R Article 11, Section 11.1
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

20F-H2020053-REL Decision – 850237.pdf

Uploaded 2026-04-26T09:52:48 (43.0 KB)

20F-H2020053-REL Decision – 850239.pdf

Uploaded 2026-04-26T09:52:51 (7.1 KB)

20F-H2020053-REL Decision – 853778.pdf

Uploaded 2026-04-26T09:52:54 (119.9 KB)

20F-H2020053-REL Decision – 850237.pdf

Uploaded 2026-01-23T17:32:29 (43.0 KB)

20F-H2020053-REL Decision – 850239.pdf

Uploaded 2026-01-23T17:32:31 (7.1 KB)

20F-H2020053-REL Decision – 853778.pdf

Uploaded 2026-01-23T17:32:32 (119.9 KB)

Administrative Hearing Briefing: Pierce v. Sierra Morado Community Association

Executive Summary

This briefing synthesizes the key findings and judicial decision in the administrative case of Erik R. Pierce versus the Sierra Morado Community Association (SMCA), Case No. 20F-H2020053-REL. The petition, filed by homeowner Erik R. Pierce, was ultimately denied by the Administrative Law Judge on February 10, 2021.

The core of the dispute was Pierce’s allegation that the SMCA failed to enforce its Covenants, Conditions, and Restrictions (CC&Rs) against his neighbors, the Kinstles, who installed a hot tub visible from Pierce’s property, creating a privacy violation. While the SMCA Board retroactively approved the hot tub, it did so with the explicit condition that a pergola and screening be installed to mitigate the visibility issue. The Kinstles subsequently failed to install the required screening.

The judge concluded that the SMCA’s conditional approval resolved the initial violation claim under CC&R Section 4.27. The central issue then became whether the SMCA’s subsequent failure to compel the installation of the screening constituted a violation of its enforcement duty under CC&R Section 11.1. The judge ruled that it did not, finding that the CC&Rs grant the Association a discretionary right to enforce its rules, not an absolute obligation. The judge found persuasive the SMCA’s testimony that it delayed enforcement actions due to the ongoing litigation and in an attempt to foster a settlement between the neighbors. This exercise of discretion was deemed permissible under the Association’s governing documents.

1. Case Overview

Parties and Legal Representation

Entity

Legal Counsel

Petitioner

Erik R. Pierce

James C. Frisch, Esq. & Michael Resare, Esq. (King & Frisch, P.C.)

Respondent

Sierra Morado Community Association (SMCA)

Heather M. Hampstead, Esq. & Nicholas C.S. Nogami, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)

Key Case Details

• Case Number: 20F-H2020053-REL

• Presiding Judge: Adam D. Stone, Administrative Law Judge

• Hearing Date: January 25, 2021 (conducted via Google Meet)

• Decision Date: February 10, 2021

• Jurisdiction: The Arizona Department of Real Estate (ADRE) is statutorily authorized to hear petitions from homeowners’ association members. This case was referred by the ADRE to the Office of Administrative Hearings for an evidentiary hearing.

2. Core Dispute and Allegations

Petitioner’s Complaint

On March 23, 2020, Erik R. Pierce filed a complaint with the ADRE alleging that the SMCA was in violation of its own CC&Rs, specifically Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

The dispute originated with the installation of a hot tub by Pierce’s neighbors, the Kinstles. Pierce testified that the hot tub and its occupants were visible from inside his house, and that occupants of the hot tub could look directly into his home, violating his right to privacy.

Timeline of Key Events

• September 4, 2019: Pierce submits his initial complaint to the SMCA, noting the hot tub’s visibility and asserting that the Kinstles had failed to obtain prior approval from the Architectural Review Committee (ARC).

• Post-September 2019: The SMCA informs the Kinstles that they installed the hot tub without approval and directs them to submit plans for the proper approval process.

• February 10, 2020: After several rejections, the SMCA Board approves the Kinstles’ hot tub installation on the condition that a pergola and screening are installed.

• March 3, 2020: Pierce receives a letter from the property management company, AAM, LLC, stating that the installation was approved with the screening requirement and that the complaint was closed.

• January 25, 2021: At the time of the hearing, the Kinstles had still not installed the required pergola and screening.

3. Analysis of Key Testimonies

The decision was informed by testimony from four witnesses presented by the Petitioner.

• Erik R. Pierce (Petitioner): Outlined the timeline of the dispute, the visibility of the neighbors’ hot tub, the resulting privacy violation, and the SMCA Board’s failure to enforce its own conditional approval requiring a pergola and screening.

• Bill Oliver (Former SMCA President, Fall 2019 – April 2020): Confirmed that the Board approved the hot tub retroactively with the stipulation for a pergola and screening. He stated the Board had a “rigorous process of enforcement” but could not recall if a specific violation letter was sent to the Kinstles after the conditional approval was granted.

• Jodie Cervantes (Former Community Manager, 2019 – June 2020): Testified that she believed the CC&Rs were enforced and the matter was closed. She suggested the Kinstles had a six-month period to comply with the screening requirement, which she believed was in the Design Guidelines, but could not point to the specific language.

• Martin Douglas (Current SMCA President, from April 2020): Stated he had been to the Pierce residence for another matter and the hot tub was not visible to him. He attributed the lack of enforcement action to the “ongoing litigation and multiple settlement offers which were being exchanged.” He testified that upon resolution of the case, the Board “will follow through with enforcement actions should the Kinstle’s fail to comply.”

4. Judicial Reasoning and Decision

The Administrative Law Judge’s decision centered on the interpretation of the SMCA’s CC&Rs and the discretionary power of its Board.

Governing CC&R Provisions

The ruling rested on the specific language of two sections of the SMCA CC&Rs:

• Section 4.27 (Swimming Pools and Spas): This section permits the installation of a hot tub only if it is “properly screened… if neither it nor its occupants are Visible from Neighboring Property, and with the prior written approval of the Architectural Review Committee.”

• Section 11.1 (Enforcement): This section states that “The Association or any Owner shall have the right to enforce the Project Documents… The failure of the Association or an Owner to take enforcement action with respect to a violation of the Project Documents shall not constitute or be deemed a waiver of the right of the Association or any Owner to enforce the Project Documents in the future.”

Administrative Law Judge’s Conclusions

1. Resolution of the Section 4.27 Claim: The judge determined that the initial issue regarding the unapproved hot tub “was essentially resolved by the Board instructing the Kinstle’s erect a pergola and install screening.” By making its approval conditional on a privacy solution, the Board addressed the core requirement of the section.

2. The “Heart of the Matter” – Section 11.1 Enforcement: The judge identified the central question as whether the SMCA violated Section 11.1 by failing to enforce the screening requirement against the Kinstles.

3. Discretionary vs. Mandatory Enforcement: The judge concluded that the language of Section 11.1 grants the Board a “right to enforce, not an absolute obligation.”

4. Rationale for Delayed Enforcement: The judge found the testimony of the current SMCA President, Martin Douglas, to be “more persuasive.” Douglas’s explanation—that the Board delayed enforcement to “foster an agreement with the neighbors” amid ongoing litigation—was accepted as a valid exercise of the Board’s discretion.

5. Final Ruling: The judge stated, “Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.” Consequently, the judge ruled that the Petitioner failed to prove by a preponderance of the evidence that the Respondent had violated CC&R Section 11.1.

Final Order

IT IS ORDERED that Petitioners’ petition is denied.

The order was issued on February 10, 2021, and is binding unless a rehearing is granted.

Study Guide: Pierce v. Sierra Morado Community Association (Case No. 20F-H2020053-REL)

This study guide provides a review of the administrative hearing concerning the dispute between Erik R. Pierce and the Sierra Morado Community Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a comprehensive glossary of terms and entities involved in the case.

Short-Answer Quiz

Answer each of the following questions in two to three complete sentences, based on the provided source documents.

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

2. What was the initial reason for Mr. Pierce’s complaint against his neighbors, the Kinstles?

3. Which two sections of the Sierra Morado Community Association (SMCA) CC&Rs did Mr. Pierce allege were violated?

4. What action did the SMCA Board take after being informed that the Kinstles had installed a hot tub without prior approval?

5. What specific conditions did the SMCA Board require for the retroactive approval of the Kinstles’ hot tub installation?

6. According to former Board President Bill Oliver’s testimony, what was the Board’s common practice regarding architectural requests made after an installation?

7. What reason did Community Manager Jodie Cervantes give for her belief that no further enforcement action could be taken against the Kinstles?

8. According to current SMCA Board President Martin Douglas, why had the Board delayed enforcement actions against the Kinstles?

9. What was the Administrative Law Judge’s final decision regarding the alleged violation of CC&R Section 11.1?

10. How did the judge interpret the Board’s enforcement power as described in Section 11.1 of the CC&Rs?

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Answer Key

1. The primary parties were Erik R. Pierce, who was the Petitioner filing the complaint, and the Sierra Morado Community Association (SMCA), which was the Respondent. Mr. Pierce is a homeowner and member of the SMCA.

2. Mr. Pierce’s complaint originated because his neighbors, the Kinstles, installed a hot tub that was visible from his backyard. He testified that occupants in the hot tub were visible from inside his house, violating his privacy.

3. The Petitioner, Mr. Pierce, alleged that the Respondent, SMCA, was in violation of sections 4.27 and 11.1 of the SMCA CC&Rs. Section 4.27 pertains to the installation of spas, and Section 11.1 addresses the enforcement of project documents.

4. After Mr. Pierce filed his complaint, the SMCA informed the Kinstles that they had installed the hot tub without approval. The Board then directed the Kinstles to submit their plans and go through the proper architectural approval process.

5. The Kinstles’ hot tub was approved retroactively on February 10, 2020, on the condition that they install a pergola and screening. This was intended to address the visibility of the hot tub from Mr. Pierce’s property.

6. Bill Oliver, the SMCA President from fall 2019 to April 2020, testified that the Board would approve architectural requests retroactively. He confirmed that this is what occurred in the case of the Kinstles’ hot tub.

7. Jodie Cervantes, the Community Manager, testified that she believed the matter was closed because the Kinstles had six months to comply with the pergola and screening requirements. She believed this six-month deadline was outlined in the Design Guidelines, though she could not locate the specific language.

8. Martin Douglas, who became Board President in April 2020, testified that the Board delayed enforcement actions due to the ongoing litigation. He stated that multiple settlement offers were being exchanged in an effort to foster an agreement between the neighbors.

9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that Mr. Pierce did not establish by a preponderance of the evidence that the SMCA had violated CC&R Section 11.1.

10. The judge determined that Section 11.1 grants the Board a right to enforce the rules, not an absolute obligation to do so. This interpretation means the Board has the discretion to delay enforcement, which it did in this case to facilitate a potential settlement.

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Essay Questions

The following questions are designed for longer, essay-style responses. Use evidence and testimony from the case documents to construct a thorough analysis. No answers are provided.

1. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision. Analyze why the Petitioner, Erik R. Pierce, failed to meet this burden of proof concerning the violation of CC&R Section 11.1.

2. Trace the timeline of events from Mr. Pierce’s initial complaint on September 4, 2019, to the final decision on February 10, 2021. Discuss the key actions, delays, and decisions made by the SMCA Board during this period.

3. Compare and contrast the testimonies of Bill Oliver, Jodie Cervantes, and Martin Douglas. How do their different roles and timeframes with the SMCA shape their perspectives on the association’s enforcement process and the specific handling of the Kinstle case?

4. Analyze the Administrative Law Judge’s interpretation of CC&R Section 11.1. Discuss the distinction made between a “right to enforce” and an “absolute obligation,” and explain how this interpretation was central to the final ruling.

5. Based on the judge’s findings and the testimony of Martin Douglas, what are the likely next steps for the SMCA regarding the Kinstles’ non-compliance with the pergola and screening requirement? Evaluate the potential for future conflict or resolution between the parties involved.

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Glossary of Key Terms

Term / Entity

Definition

AAM, LLC

The property management company that employed Community Manager Jodie Cervantes and managed the Sierra Morado Community Association during the period of the dispute.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings. In this case, the ALJ was Adam D. Stone of the Office of Administrative Hearings.

Architectural Committee (ARC)

The committee within the SMCA responsible for approving construction, installations, and alterations to properties, as referenced in CC&R Section 4.27.

Arizona Department of Real Estate (ADRE)

The state agency authorized by statute to receive and decide Petitions for Hearing from members of homeowners’ associations. Mr. Pierce filed his initial complaint with this department.

Burden of Proof

The obligation on a party in a legal case to prove its allegations. In this case, the Petitioner had the burden to establish his claim by a “preponderance of the evidence.”

Covenants, Conditions, and Restrictions. These are the governing documents or rules of a planned community. The dispute centered on alleged violations of Sections 4.27 (Swimming Pools and Spas) and 11.1 (Enforcement).

Hearing

The formal proceeding held on January 25, 2021, where the parties presented exhibits and witness testimony to the Administrative Law Judge.

Office of Administrative Hearings

An independent state agency that conducts evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition or complaint to initiate a legal proceeding. In this case, the Petitioner was Erik R. Pierce.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”

Respondent

The party against whom a petition or complaint is filed. In this case, the Respondent was the Sierra Morado Community Association (SMCA).

Retroactive Approval

The act of approving an architectural installation (such as a hot tub) after it has already been completed, which the SMCA Board did in this case.

Sierra Morado Community Association (SMCA)

The homeowners’ association in Tucson, Arizona, of which Erik R. Pierce and the Kinstles are members.

Stipulation

An agreement between the parties in a legal proceeding. In this case, the parties stipulated to enter all submitted exhibits into the record.

Your HOA Can Ignore Its Own Rules? A Surprising Legal Case Every Homeowner Needs to Understand

Introduction: The Homeowner’s Dilemma

Most homeowners in a planned community operate under a simple assumption: if a neighbor violates a clear rule, you can file a complaint, and the Homeowners Association (HOA) is required to take action. It’s the fundamental promise of an HOA—consistent enforcement to protect property values and quality of life.

But what happens when the HOA agrees a violation has occurred, demands a fix, and then… does nothing to enforce it?

A real-world legal case, Erik R. Pierce versus the Sierra Morado Community Association, provides a surprising and cautionary answer. The final court decision reveals a critical loophole that may exist in your own HOA agreement. This article will break down the three most counter-intuitive takeaways from that case that every homeowner should understand.

Takeaway 1: “A Right to Enforce” Isn’t an “Obligation to Enforce”

The core of the dispute was straightforward. Homeowner Erik Pierce filed a complaint because his neighbors, the Kinstles, installed a hot tub that was visible from his property, a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs)—the legally binding rules that govern the community. The HOA’s Architectural Committee retroactively approved the hot tub, but only on the condition that the neighbors install a pergola and screening to shield it from view.

The neighbors never installed the required screening, yet the HOA took no further enforcement action. This inaction led Mr. Pierce to sue the HOA.

The judge’s decision hinged on a crucial interpretation of the HOA’s governing documents. The judge ruled in favor of the HOA because the documents gave the Board the right to enforce the rules, not an absolute obligation to do so. This distinction granted the HOA discretion to choose its strategy. The judge found the board’s reasoning for the delay persuasive: it was deliberately choosing negotiation over immediate punitive action to resolve the conflict. The board’s discretion wasn’t just a right to do nothing; it was a right to choose a different path to compliance.

The key phrase here is “shall have the right to enforce.” Had the documents stated the board “shall enforce,” the outcome would likely have been entirely different. This single phrase transforms enforcement from a mandate into a strategic option for the board.

The Administrative Law Judge’s decision highlights this critical point:

“…Section 11.1 only gives the Board a right to enforce, not an absolute obligation. While Petitioner is understandably upset that there has yet to be any follow through on enforcement of the screening requirements, this tribunal finds the testimony of Mr. Douglas more persuasive, namely that the Board has delayed in enforcing because it was trying to foster an agreement with the neighbors. Section 11.1 expressly granted the Board this discretion, and it should not be disturbed.”

This finding is shocking for most homeowners, who reasonably assume that the rules laid out in their CC&Rs are mandates for the board, not a menu of discretionary options.

Takeaway 2: Suing Your HOA Can Ironically Pause Enforcement

The board’s discretionary power was put on full display when Mr. Pierce filed his lawsuit, creating a legal Catch-22. The current SMCA Board President, Martin Douglas, testified that the board deliberately paused formal enforcement actions against the neighbors who had violated the architectural requirement.

The judge ultimately found that the board’s rationale for this pause was a valid exercise of its discretion. The decision to delay was framed not as inaction, but as a strategic choice “to foster an agreement with the neighbors” amidst the complexities of litigation.

This reveals a deep irony: by filing a petition to force the HOA’s hand, the homeowner inadvertently provided the context for the HOA to justify a delay. The judge accepted that the board’s attempt to find a negotiated solution instead of escalating fines and penalties during an active lawsuit was a reasonable use of its discretionary authority. This case demonstrates how legal action, intended to accelerate a resolution, can sometimes be used by an HOA board to justify a different, slower approach.

Takeaway 3: A Clear Rule Violation Doesn’t Guarantee a Win in Court

One of the most surprising aspects of this case is that the facts of the violation were not in dispute. The judge explicitly acknowledged that the neighbors were in violation of the Architectural Review Committee’s requirement. The official decision states:

“Based upon the evidence provided, the Kinstle’s are in violation of the requirement the ARC Committee imposed on them.”

Despite this clear violation by the neighbor, the homeowner, Mr. Pierce, still lost his case against the HOA.

The case was lost on a critical legal distinction: the lawsuit was not about the neighbor’s violation, but about the HOA’s alleged failure to act. Since the judge determined the HOA had the discretionary right—not the mandatory obligation—to enforce the rule, its choice to pursue negotiation rather than immediate punitive action was not considered a violation of its duties.

The lesson here is profound: proving a neighbor is breaking the rules is only the first step. To win a case against your HOA for non-enforcement, you must also prove that its response (or lack thereof) constitutes a breach of its specific duties as outlined in your community’s governing documents.

Conclusion: Know Your Documents, Temper Your Expectations

The case of Pierce v. Sierra Morado Community Association serves as a stark reminder that HOA governance is often more complex than it appears. The precise wording of your community’s CC&Rs is critically important, as a single phrase can be the difference between a mandatory duty and a discretionary power. This case illustrates that the gap between a rule existing on paper and the board’s power to enforce it can be vast.

As a homeowner, your first step should be to obtain a copy of your community’s most recent CC&Rs and search for the enforcement clause—does it say your board “shall” enforce the rules, or does it say they have the “right” to?

This case forces every homeowner to ask: If your governing documents give your board the ‘right’ to act, what leverage do you truly have to ensure they actually will?

Case Participants

Petitioner Side

Erik R. Pierce (petitioner)
James C. Frisch (petitioner attorney)
King & Frisch, P.C.
Michael Resare (petitioner attorney)

Respondent Side

Nicholas C.S. Nogami (respondent attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Heather M. Hampstead (respondent attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Jodie Cervantes (property manager/witness)
AAM, LLC
Community Manager for Respondent SMCA
Bill Oliver (board member/witness)
Former SMCA President (Fall 2019 to April 2020)
Martin Douglas (board member/witness)
Current SMCA Board President (since April 2020)

Neutral Parties

Adam D. Stone (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate
LDettorre (unknown)
Arizona Department of Real Estate
Transmission recipient
AHansen (unknown)
Arizona Department of Real Estate
Transmission recipient
djones (unknown)
Arizona Department of Real Estate
Transmission recipient
DGardner (unknown)
Arizona Department of Real Estate
Transmission recipient
ncano (unknown)
Arizona Department of Real Estate
Transmission recipient
c. serrano (clerk)
Signed document transmission

Foothills Club West Homeowners Association v. Subrahmanyam & Sheila

Posted on November 27, 2020 by [email protected]

Case Summary

Case ID	21F-H2120004-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-27
Administrative Law Judge	Kay Abramsohn
Outcome	The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Foothills Club West Homeowners Association	Counsel	John Halk, Esq.
Respondent	Subrahmanyam & Sudhakar Living Trust	Counsel	Mary T. Hone, Esq.

Alleged Violations

CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5

Outcome Summary

The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.

Key Issues & Findings

Unauthorized 2nd story addition

Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.

Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_win

Cited:

CC&Rs Article 7, Section 7.3
CC&R Article 9, Section 9.3
CC&R Article 9, Section 9.4
CC&R Article 9, Section 9.5

Analytics Highlights

Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party

Additional Citations:

A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. §§ 32-2199(2)
A.R.S. §§ 32-2199.01(D)
A.R.S. §§ 32-2199.02
A.R.S. § 32-2199.05
A.R.S. § 41-1092
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-04-28T10:53:36 (135.4 KB)

21F-H2120004-REL Decision – 839537.pdf

Uploaded 2026-01-23T17:34:43 (135.4 KB)

Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust

Executive Summary

This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.

The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).

I. Case Overview

• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.

• Case Number: 21F-H2120004-REL

• Jurisdiction: Arizona Office of Administrative Hearings

• Administrative Law Judge: Kay Abramsohn

• Hearing Date: October 5, 2020

• Decision Date: November 27, 2020

• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.

II. Chronology of Key Events

The hearing record established the following undisputed sequence of events:

Oct. 2018

Respondents begin construction of the second-story addition.

Nov. 7, 2018

The City of Phoenix issues a stop-work order, noting a permit is required.

Nov. 7, 2018

Foothills HOA issues a violation notice to the Respondents.

Dec. 17, 2018

Respondents obtain a permit from the City of Phoenix.

Jan. 18, 2019 (approx.)

Respondents submit a request for approval to the Foothills Architectural Committee.

Jan. 18, 2019

Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.

Feb. 22, 2019

Foothills HOA issues a formal denial of the application.

Mar. 15, 2019

The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.

Post Feb. 2019

The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.

July 24, 2020

Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.

Oct. 5, 2020

The administrative hearing is held.

Nov. 27, 2020

The Administrative Law Judge issues the final decision.

III. Arguments of the Parties

A. Petitioner: Foothills Club West HOA

• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.

• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.

• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.

• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.

B. Respondents: Subrahmanyam & Sudhakar Living Trust

• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.

• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.

• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.

• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”

• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.

• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.

IV. Analysis of Governing Documents

The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.

• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:

• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.

• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”

• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.

V. Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions of law provided a clear framework for the final order.

A. Burden of Proof

The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”

B. Core Conclusion on Violations

The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:

“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”

This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.

VI. Final Order and Implications

Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.

• Order:

• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.

Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust

This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.

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Short-Answer Quiz

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

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

2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?

3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?

4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?

5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?

6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?

7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?

8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?

9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.

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

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Answer Key

1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.

2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.

3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.

4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.

5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”

6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.

7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”

8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.

9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.

10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.

1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.

2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?

3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.

4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?

5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.

Architectural Committee

A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.

An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.

Disclosure

The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.

Governing Documents

The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.

Petitioner

The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.

Petition

The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is defined as “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 to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.

Tribunal

The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.

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21F-H2120004-REL

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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.

What are the specific governing document violations alleged and proven against the homeowners?

How did the legal and administrative process address the unauthorized construction dispute?

What was the final resolution ordered regarding the unapproved second-story home addition?

Case Participants

Petitioner Side

John Halk (HOA attorney)
BROWN/OLCOTT, PLLC
Represented Petitioner Foothills Club West Homeowners Association
Nathan Tennyson (HOA attorney)
BROWN/OLCOTT, PLLC
Counsel for Petitioner

Respondent Side

Mary T. Hone (Respondent attorney)
Mary T. Hone, PLLC
Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
Subrahmanyam Sudhakar (respondent)
Subrahmanyam & Sheila Sudhakar Living Trust
Trustee of the Respondent Living Trust
Sheila Sudhakar (respondent)
Subrahmanyam & Sheila Sudhakar Living Trust
Trustee of the Respondent Living Trust

Neutral Parties

Kay Abramsohn (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
LDettorre (Agency Staff)
Arizona Department of Real Estate
Recipient of electronic transmission of Order
AHansen (Agency Staff)
Arizona Department of Real Estate
Recipient of electronic transmission of Order
djones (Agency Staff)
Arizona Department of Real Estate
Recipient of electronic transmission of Order
DGardner (Agency Staff)
Arizona Department of Real Estate
Recipient of electronic transmission of Order
ncano (Agency Staff)
Arizona Department of Real Estate
Recipient of electronic transmission of Order

Robert Tomisak v. Arrowhead Lakes Condominium Association

Posted on July 17, 2020 by [email protected]

Case Summary

Case ID	20F-H2020055-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-07-17
Administrative Law Judge	Sondra J. Vanella
Outcome	The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Condominium Association violated its governing documents or state statute regarding record inspection, specifically because the Association did not possess and was not required to create a Membership Register containing unit owners' email addresses.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Robert Tomisak	Counsel	—
Respondent	Arrowhead Lakes Condominium Association	Counsel	—

Alleged Violations

A.R.S. § 33-1258; CC&Rs Article 11, Section 4.8; Bylaws, Article 10.3

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Condominium Association violated its governing documents or state statute regarding record inspection, specifically because the Association did not possess and was not required to create a Membership Register containing unit owners' email addresses.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the provisions of CC&Rs Section 11.4.8, Bylaws Section 10.3, or A.R.S. § 33-1158 (or § 33-1258) because the requested record (a Membership Register containing email addresses) did not exist, and the Association was not obligated to create it.

Key Issues & Findings

Refusal to provide access to the membership register (Owner Roster with emails)

Petitioner alleged the Respondent violated governing documents and statute by refusing access to the membership register containing email addresses. Respondent argued email addresses were protected 'personal records' under A.R.S. § 33-1258(B)(4). The ALJ found the Petitioner failed to prove a violation because the requested document (a Membership Register containing emails) did not exist, and Respondent had no obligation to create it.

Orders: The petition is dismissed and no action is required of Respondent.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1258
CC&Rs 11.4.8
Bylaws 10.3

Analytics Highlights

Topics: records inspection, membership roster, email addresses, HOA records, condominium association, A.R.S. 33-1258

Additional Citations:

A.R.S. § 32-2199.01
A.R.S. § 33-1258
A.R.S. § 33-1258(B)(4)
A.R.S. § 33-1158
CC&Rs 11.4.8
Bylaws 10.3
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

20F-H2020055-REL Decision – 807817.pdf

Uploaded 2026-04-24T11:26:50 (107.3 KB)

20F-H2020055-REL Decision – 807817.pdf

Uploaded 2026-01-23T17:32:44 (107.3 KB)

Administrative Hearing Briefing: Tomisak v. Arrowhead Lakes Condominium Association

Executive Summary

This briefing document outlines the findings and decision in the case of Robert Tomisak versus the Arrowhead Lakes Condominium Association (Case No. 20F-H2020055-REL), heard in the Office of Administrative Hearings. The petitioner, Mr. Tomisak, alleged that the Association violated its governing documents and Arizona state law by refusing his request for an owner roster that included member email addresses. The Association countered that email addresses constitute protected personal information and, more critically, that a membership register containing such information no longer exists.

The Administrative Law Judge ultimately dismissed the petition. The decision did not hinge on whether email addresses are “personal records” under the law. Instead, the ruling was based on the factual determination that the Association cannot be compelled to produce a document that it does not maintain. Since the Association had ceased including email addresses in its Membership Register in 2018, the judge concluded that the petitioner had no right to a non-existent record and had failed to meet the burden of proof required to show a violation.

I. Case Overview

Case Name

Robert Tomisak v. Arrowhead Lakes Condominium Association

Case Number

20F-H2020055-REL

Office of Administrative Hearings

Administrative Law Judge

Sondra J. Vanella

Petitioner

Robert Tomisak, Owner of Unit 1902 (Appeared on his own behalf)

Respondent

Arrowhead Lakes Condominium Association (Represented by Property Manager Terri Troy)

Hearing Date

July 9, 2020

Decision Date

July 17, 2020

II. Petitioner’s Allegations

On April 15, 2020, Robert Tomisak filed a single-issue petition alleging that the Arrowhead Lakes Condominium Association had violated its own governing documents and Arizona state law. The core of the complaint was the Association’s refusal to fulfill his March 11, 2020, email request “to provide access to the membership register” containing owner email addresses.

Mr. Tomisak specifically cited violations of the following provisions:

• Covenants, Conditions, and Restrictions (CC&Rs): Article 11, Section 4.8

• Bylaws: Article 10.3

• Arizona Revised Statutes (A.R.S.): § 33-1258

III. Respondent’s Position and Defense

The Association, through its property management company AS&A Property Management, Inc., and represented by Property Manager Terri Troy, denied all allegations. The defense rested on two key arguments:

1. Privacy Exemption: The Association contended that members’ email addresses are “personal records” and therefore exempt from disclosure under A.R.S. § 33-1258(B)(4), which protects the “personal, health or financial records of an individual member.”

2. Non-Existence of the Record: Ms. Troy testified that while the Association would readily provide the official Membership Register (containing names and addresses), this document no longer includes email addresses. This practice of excluding emails from the register began in 2018.

IV. Key Evidence and Testimony

The March 11, 2020 Email Exchange

The dispute originated with a direct email exchange between the petitioner and the property manager.

• Petitioner’s Request (7:33 a.m.): Mr. Tomisak sent an email with the subject line “Owner Roster” stating:

• Respondent’s Denial (8:23 a.m.): Ms. Troy responded with a direct refusal, citing the statutory exemption for personal information:

Hearing Testimony

During the July 9, 2020 hearing, both parties presented their arguments:

• Robert Tomisak (Petitioner): Acknowledged that he already had access to member mailing addresses but specifically required their email addresses. He argued that email addresses are not “personal information” and cited “the internet” and “California case law” as authority for this position.

• Terri Troy (Respondent): Reiterated the Association’s willingness to provide the existing Membership Register, which contains names, addresses, and unit numbers. She explained that email addresses had been removed from this register starting in 2018 and that her refusal was based on the belief that emails are protected “personal records” under A.R.S. § 33-1258(B)(4).

The Administrative Law Judge noted that neither party cited “any relevant or persuasive legal authority” to formally define “personal records” as used in the statute.

V. Legal Framework and Governing Documents

The case centered on the interpretation of three key provisions granting members access to Association records.

Document

Section

Key Provision

11.4.8

“The Association shall make available to Owners… current copies of the Declaration, Articles, Bylaws, rules of the Association and the books, records, and financial statements of the Association.”

Bylaws

“The membership register… shall be made available for inspection and copying by Members of the Association… for a purpose reasonably related to their interests as Members…”

A.R.S.

§ 33-1258(A)

“all financial and other records of the association shall be made reasonably available for examination by any member…”

A.R.S.

§ 33-1258(B)(4)

“Books and records… may be withheld from disclosure to the extent that the portion withheld relates to… Personal, health or financial records of an individual member of the association…”

VI. Administrative Law Judge’s Findings and Order

Burden of Proof

The judge established that the petitioner, Mr. Tomisak, bore the burden of proof to demonstrate by a “preponderance of the evidence” that the Association had committed the alleged violations. A preponderance of evidence is defined as that which is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Central Conclusion

The judge’s ruling was not based on the privacy argument regarding whether email addresses are “personal records.” Instead, the decision was grounded in a more fundamental point of fact regarding the existence of the requested document. The judge’s decisive conclusion of law stated:

While Petitioner has the right to enforce the requirements of the above provisions, Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.

Final Ruling

Based on this central finding, the judge held that Mr. Tomisak failed to meet his burden of proof and did not establish that the Association had violated its CC&Rs, its Bylaws, or A.R.S. § 33-1158.

IT IS ORDERED that no action is required of Respondent in this matter and that the petition is dismissed. The order is binding unless a rehearing is requested within 30 days of its service.

Study Guide: Tomisak v. Arrowhead Lakes Condominium Association

This study guide provides a review of the administrative hearing decision in case number 20F-H2020055-REL, involving Petitioner Robert Tomisak and Respondent Arrowhead Lakes Condominium Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to test and deepen understanding of the case.

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Short-Answer Quiz

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

1. Who were the petitioner and the respondent in this case, and what was their established relationship?

2. What specific document and data did the petitioner request from the respondent in his email dated March 11, 2020?

3. On what legal grounds did the respondent deny the petitioner’s request? Cite the specific statutory provision they referenced.

4. Identify the three governing documents or statutes that the petitioner alleged the respondent had violated.

5. What information was the respondent, through its property manager Terri Troy, willing to provide to the petitioner?

6. What was the central reason cited by the Administrative Law Judge in the “Conclusions of Law” for dismissing the petition?

7. Define the “preponderance of the evidence” standard and identify which party had the burden of meeting this standard.

8. What authority did the petitioner cite during the hearing to support his argument that email addresses do not constitute “personal information”?

9. According to Property Manager Terri Troy’s testimony, when and why did the content of the Membership Register change?

10. What was the final order issued by the Administrative Law Judge on July 17, 2020?

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Answer Key

1. The petitioner was Robert Tomisak, who owns condominium unit 1902 in the Arrowhead Lakes development. The respondent was the Arrowhead Lakes Condominium Association, of which the petitioner is a member.

2. The petitioner requested an electronic copy of the “Owner’s Roster with emails.” He specifically wanted a membership list that included the email addresses of the other condominium owners.

3. The respondent denied the request based on A.R.S. § 33-1258(B)(4). They argued that this provision allows an association to withhold the “personal records of an individual member,” and they considered email addresses to fall under this category.

4. The petitioner alleged the respondent violated its Covenants, Conditions, and Restrictions (CC&Rs) Article 11, Section 4.8; its Bylaws, Article 10.3; and Arizona Revised Statute (A.R.S.) § 33-1258.

5. The respondent was willing to provide the Membership Register, which included the names, unit numbers, and mailing addresses of the members. However, this register did not contain email addresses.

6. The judge dismissed the petition because the petitioner did not have the right to a record that does not exist—namely, a Membership Register containing email addresses. The judge concluded there was no requirement in the governing provisions for the respondent to create such a document.

7. A “preponderance of the evidence” is the standard of proof requiring the trier of fact to be convinced that a contention is more probably true than not. The petitioner, Robert Tomisak, bore the burden of establishing his claim by this standard.

8. During the hearing, the petitioner cited “the internet” and “California case law” as his authority for the proposition that email addresses were not considered personal information.

9. Terri Troy testified that the Membership Register previously contained email addresses but that this practice was stopped beginning in 2018. The change was made based on the association’s belief that email addresses were the “personal records” of the owners.

10. The final order stated that no action was required of the respondent and that the petition was dismissed.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-style response. Use the case document to formulate a detailed and well-supported argument.

1. Analyze the central legal conflict in this case. Discuss the petitioner’s interpretation of a member’s right to access records under the CC&Rs, Bylaws, and A.R.S. § 33-1258 versus the respondent’s interpretation, focusing on the exemption for “personal records.”

2. Evaluate the evidence presented by both the petitioner and the respondent during the July 9, 2020 hearing. Explain why the judge ultimately found that the petitioner failed to meet the “preponderance of the evidence” standard.

3. The judge’s decision rested heavily on the finding that the respondent was not obligated to create a document that did not exist. Discuss the significance of this finding. How might the case outcome have differed if the Membership Register still actively contained member email addresses at the time of the request?

4. Discuss the concept of “burden of proof” as it applies to this administrative hearing. Explain why this burden fell upon the petitioner and how the failure to meet this evidentiary standard was a determinative factor in the dismissal of the petition.

5. Examine the roles and interaction of the governing documents (CC&Rs, Bylaws) and state law (A.R.S. § 33-1258) in this dispute. Which provisions offered the petitioner the right to inspect records, and which specific clause provided the strongest defense for the respondent?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, Sondra J. Vanella.

A.R.S. § 33-1258

The Arizona Revised Statute that mandates associations make financial and other records “reasonably available” to members, while also providing exceptions for withholding certain information, such as “personal, health or financial records of an individual member.”

Association

The Arrowhead Lakes Condominium Association, a condominium unit owners’ association responsible for managing the Arrowhead Lakes development.

Bylaws

The rules governing the internal operations of the association. Section 10.3 is referenced, which grants members the right to inspect the “membership register” and other books and records.

Covenants, Conditions, and Restrictions. These are the primary governing legal documents for the condominium development. Section 11.4.8 is referenced, which requires the association to make its books and records available to owners.

Membership Register

A formal list of the members of the association. The respondent’s register included names and addresses with unit numbers but, as of 2018, no longer included email addresses.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, Robert Tomisak, a condominium owner and member of the association.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Arrowhead Lakes Condominium Association.

He Sued His Condo Association for an Email List. The Judge’s Reason for Saying No Will Surprise You.

If you live in a condominium or a community governed by a homeowners’ association, you’ve likely wondered what official records you’re entitled to see. From financial statements to meeting minutes, these documents are the backbone of a transparent community. But what happens when the information you want isn’t in a format the association readily provides?

This was the central conflict for Robert Tomisak, a condominium owner in Glendale, Arizona. At 7:33 a.m. on March 11, 2020, he sent an email to his association requesting an electronic copy of the “Owner’s Roster with emails.” Less than an hour later, at 8:23 a.m., the property manager refused. Believing he was legally entitled to the list, Mr. Tomisak sued. When the case went before an administrative law judge, the final decision hinged on a simple but powerful distinction that most people would never see coming. This case reveals some surprising truths about our rights to information and how they are applied in the real world.

1. Takeaway #1: Your right is to inspectexistingrecords, not to have new ones created for you.

The core of the judge’s decision came down to a simple, factual matter. While Mr. Tomisak had a legal right to inspect association records, the specific document he requested—a Membership Register that included email addresses—did not actually exist.

According to testimony from property manager Terri Troy, the association was perfectly willing to provide the official Membership Register, which contained owner names and mailing addresses. However, she clarified that the association had stopped including email addresses in that specific record back in 2018. The judge found this fact to be decisive. While the petitioner had the right to access existing records, the association had no legal duty to create a new one for him. The judge’s “Conclusions of Law” put it in unambiguous terms:

Petitioner does not have the right to a record that does not exist, i.e., a Membership Register containing email addresses. Further, there is no requirement in the above provisions that Respondent has an obligation to create such a document.

This is a counter-intuitive but crucial distinction. Many people assume that if an organization possesses individual pieces of data (like names in one file and emails in another), they are obligated to compile that data into the format you request. This ruling clarifies that the legal obligation is to provide access to records as they are currently maintained, not to perform data-compilation tasks on demand. For association boards, this is a critical clarification of their duties; for homeowners, it’s a lesson in the power of a precise request.

2. Takeaway #2: The legal definition of “personal records” can be surprisingly ambiguous.

The central argument between the two parties revolved around privacy. Mr. Tomisak requested the email list citing an Arizona statute (A.R.S. § 33-1258) that grants members access to association records. In response, Ms. Troy denied the request by citing a specific exemption in that same law—A.R.S. § 33-1258(B)(4)—which allows an association to withhold “personal… records of an individual member.” Ms. Troy believed email addresses fell under this category; Mr. Tomisak argued they did not.

Crucially, Mr. Tomisak acknowledged during the hearing that he already had access to the mailing addresses for all units. His demand was not about the fundamental ability to communicate with his neighbors, but about the specific method. This reframes the dispute away from pure access-to-information and toward convenience and the definition of privacy.

However, when it came time to define “personal records,” both sides faltered. The petitioner cited “the internet” and “California case law” as his authority—a common mistake litigants make, as vague or non-binding sources hold little weight with a judge focused on specific state statutes. The judge noted that “Neither party cited to any relevant or persuasive legal authority to establish the definition of ‘personal records’ as referenced in the relevant statute.” This failure by both parties essentially forced the judge’s hand, allowing her to bypass the murky privacy debate and settle the case on the much clearer, indisputable fact that the requested record did not exist.

3. Takeaway #3: Even with clear rules, the burden of proof is always on the person making the claim.

On paper, the rules seemed to be in the petitioner’s favor. Section 11.4.8 of the community’s CC&Rs, Section 10.3 of its Bylaws, and the state statute A.R.S. § 33-1258 all grant members the right to inspect association records. So why did he lose?

The answer lies in the legal concept of the “burden of proof.” According to the hearing decision, the petitioner “bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence.”

“Preponderance of the evidence” simply means evidence that is more convincing and more likely true than not. In this case, because the petitioner could not prove that the specific document he wanted—a Membership Register containing emails—actually existed, he failed to meet this burden. He could not convince the judge that the association had violated its duties because the duty he claimed they violated (providing a non-existent record) was not one they actually had. This serves as a practical lesson for any homeowner: having a right on paper is not enough; you must be able to prove that the specific right was violated with convincing evidence.

Conclusion: A Lesson in Specificity

The case of Tomisak vs. Arrowhead Lakes Condominium Association is a masterclass in how legal rights and obligations are often more specific and literal than we assume. The final decision wasn’t based on broad principles of privacy versus access, but on the simple, verifiable fact that a non-existent document cannot be produced.

The judge’s final order was to dismiss the petition, requiring no action from the condo association. This case forces every resident and board member to ask a crucial question: Are you fighting over a principle, or are you making a specific request for a real, existing document? In the eyes of the law, only one of those will win you the day.

Case Participants

Petitioner Side

Robert Tomisak (petitioner)
Appeared on his own behalf; also testified

Respondent Side

Terri Troy (property manager)
Arrowhead Lakes Condominium Association / AS&A Property Management, Inc.
Appeared and testified on behalf of Respondent

Neutral Parties

Sondra J. Vanella (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Donna M Bischoff v. Country Hills West Condominium Association, Inc.

Posted on March 30, 2020 by [email protected]

Case Summary

Case ID	20F-H2019033-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-03-30
Administrative Law Judge	Antara Nath Rivera
Outcome	The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Filing Fees Refunded	$1,500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Donna M Bischoff	Counsel	—
Respondent	Country Hills West Condominium Association, Inc.	Counsel	—

Alleged Violations

A.R.S. § 33-1250(C)
A.R.S. § 33-1248(B)
Bylaws Article 3, Section 2

Outcome Summary

The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.

Key Issues & Findings

Voting; proxies; absentee ballots; applicability; definition

Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.

Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1250(C)

Open meetings; exceptions

Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.

Orders: Petition upheld on this issue.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1248(B)

Selection

Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.

Orders: Petition upheld on this issue.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Article 3, Section 2 of the Bylaws

Analytics Highlights

Topics: HOA Dispute, Condominium Association, Election Procedures, Annual Meeting, Statutory Violation, Bylaw Interpretation

Additional Citations:

A.R.S. § 33-1250(C)
A.R.S. § 33-1248(B)
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
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)
Bylaws Article 3, Section 2
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

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Video Overview

Audio Overview

Decision Documents

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-04-24T11:24:42 (108.5 KB)

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-01-23T17:31:15 (108.5 KB)

Briefing Document: Bischoff v. Country Hills West Condominium Association

Executive Summary

This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.

The core violations upheld by the court are:

1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.

2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.

3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.

As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.

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I. Case Overview

The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.

Case Detail

Information

Case Name

Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent

Case Number

20F-H2019033-REL

Adjudicator

Administrative Law Judge Antara Nath Rivera

Hearing Date

March 10, 2020

Decision Date

March 30, 2020

Petitioner Representative

Donna M. Bischoff (on her own behalf)

Respondent Representative

Doug Meyer, President and Director

II. Petitioner’s Allegations

The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:

• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.

• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.

• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.

The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

III. Core Issues and Factual Findings

The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.

A. Failure to Hold the 2019 Annual Meeting

• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.

• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”

• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”

B. Denial of Access to Election Records

• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.

• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.

• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.

• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.

• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.

C. Improper Prohibition of Write-In Ballots

• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”

• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.

• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.

• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.

IV. Legal Conclusions and Final Order

The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.

Final Order:

Based on the foregoing conclusions, IT IS ORDERED that:

1. The Petition filed by Donna M. Bischoff is upheld on all issues.

2. The Petitioner is deemed the prevailing party in the matter.

3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.

4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.

5. No Civil Penalty is found to be appropriate in this matter.

The Order is binding on the parties 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.

Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.

——————————————————————————–

Short-Answer Quiz

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

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

2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?

3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?

4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?

5. What information did the Petitioner request from the October 2018 election, and what was the initial response?

6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?

7. What is the legal standard of proof the Petitioner was required to meet in this hearing?

8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?

9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?

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

——————————————————————————–

Answer Key

1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.

2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.

3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.

4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.

5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.

6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.

7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.

9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.

10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.

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Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.

1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.

2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?

3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.

4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.

5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.

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Glossary of Key Terms

Definition

Administrative Law Judge

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.

Arizona Department of Real Estate (Department)

The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.

Arizona Revised Statutes (A.R.S.)

The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).

Bylaws

The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.

Homeowners Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.

Office of Administrative Hearings

The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Quorum

The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.

Respondent

The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.

Select all sources

778923.pdf

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20F-H2019033-REL

1 source

This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.

What were the specific legal violations found against the Condominium Association regarding meetings and documents?

How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?

What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?

Case Participants

Petitioner Side

Donna M Bischoff (petitioner)
Appeared on her own behalf

Respondent Side

Doug Meyer (president, director, witness)
Country Hills West Condominium Association, Inc.
Appeared and testified on behalf of Respondent

Neutral Parties

Antara Nath Rivera (ALJ)
OAH
Judy Lowe (commissioner)
Arizona Department of Real Estate
Decision transmitted electronically to Commissioner

Paul L Moffett v. Vistoso Community Association

Posted on January 28, 2020 by [email protected]

Case Summary

Case ID	20F-H2019014-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-01-27
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Paul L Moffett	Counsel	Richard M. Rollman
Respondent	Vistoso Community Association	Counsel	Jason E. Smith

Alleged Violations

CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes

Outcome Summary

The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.

Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.

Key Issues & Findings

Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.

Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.

Orders: Petitioner’s petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 32-2199
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY

Analytics Highlights

Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation

Additional Citations:

A.R.S. § 32-2199
CC&Rs Article VII, Section 7.3.1
CC&Rs Article VIII, Section 8.3
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
BLACK’S LAW DICTIONARY
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

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Decision Documents

20F-H2019014-REL Decision – 766242.pdf

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20F-H2019014-REL Decision – 766243.pdf

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20F-H2019014-REL Decision – 766242.pdf

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20F-H2019014-REL Decision – 766243.pdf

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Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)

Executive Summary

On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.

The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.

The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.

Case Overview

This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.

Detail

Information

Case Name

Paul L Moffett vs. Vistoso Community Association

Case Number

20F-H2019014-REL

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Tammy L. Eigenheer

Petition Filed

On or about September 25, 2019

Hearing Date

December 16, 2019

Decision & Order Date

January 27, 2020

Petitioner

Paul L. Moffett

Petitioner’s Counsel

Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.

Respondent

Vistoso Community Association

Respondent’s Counsel

Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC

The Core Dispute: Voter Eligibility and Reduced Assessments

Petitioner’s Allegation

On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.

The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:

• Vistoso Highlands: Owner of 39 lots.

• Pulte: Owner of 168 lots.

Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.

Analysis of Arguments and Key Provisions

The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.

Key Governing Document Provisions

• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”

• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.

Petitioner’s Position (Paul L. Moffett)

The petitioner’s argument was straightforward:

• Vistoso Highlands and Pulte were paying reduced assessments.

• Section 7.3.1 prohibits voting for members who pay reduced assessments.

• Therefore, their votes should not have been counted.

Respondent’s Position (Vistoso Community Association)

The respondent’s argument focused on the precise qualifying language in the CC&Rs:

• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”

• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.

• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.

• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.

Established Findings of Fact

The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.

• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.

• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.

• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.

• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.

• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.

• March 29, 2019: The Board of Directors election was held.

• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”

The Administrative Law Judge’s Decision and Rationale

The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.

Legal Interpretation

The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.

The decision states:

“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”

The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.

Acknowledgment of Financial Discrepancy

The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”

Final Order

Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.

• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”

• Notice: The decision is binding on the parties 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.

Study Guide: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)

This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.

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Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, using only information provided in the source documents.

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

2. What specific article and section of the community documents did the Petitioner allege was violated?

3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?

4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?

5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?

6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?

7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?

8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?

9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?

10. What was the final order in this case, and what recourse was available to the parties after the decision?

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Answer Key

1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.

2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.

3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.

4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”

5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.

6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.

7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.

8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.

9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.

10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.

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Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.

1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.

2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.

3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?

4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.

5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.

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Glossary of Key Terms and Entities

Term / Entity

Definition

Administrative Law Judge (ALJ)

An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.

Arizona Department of Real Estate (Department)

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

Article VII, Section 7.3.1

The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”

Article VIII, Section 8.3

The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.

Burden of Proof

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

Declarant

The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.

Developer Owner

An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.

Homeowners Association (HOA) Dispute Process Petition

The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.

Office of Administrative Hearings (OAH)

The state office where the formal hearing for this case was conducted before an Administrative Law Judge.

Petitioner

The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed. In this case, the Vistoso Community Association.

The Legal Loophole That Flipped an HOA Election on Its Head

For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.

This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.

The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote

The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.

The community’s governing documents contained two key sections:

• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.

• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.

On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.

The Smoking Gun: Developers Were Underpaying for Years

The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.

• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.

• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.

However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.

The Twist: A Single Phrase Created a Mind-Bending Loophole

This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”

The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.

In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.

The ALJ summarized this stunning conclusion in the final decision:

Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.

The Verdict: A Financial Problem Doesn’t Invalidate a Vote

Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.

The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).

While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.

This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.

Conclusion: The Devil is Always in the Details

This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.

The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.

Case Participants

Petitioner Side

Paul L Moffett (petitioner)
Appeared at hearing and testified on his own behalf
Richard M. Rollman (petitioner attorney)
Gabroy, Rollman & Bosse, P.C.
Alyssa Leverette (legal staff)
Gabroy, Rollman & Bosse, P.C.
Listed below Petitioner's attorney on service list

Respondent Side

Jason E. Smith (respondent attorney)
CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Kimberly Rubly (witness)
Vice President of Southern Region (testified for Respondent)
Sean K. Moynihan (respondent attorney)
CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
Recipient of Order

Neutral Parties

Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
LDettorre (ADRE staff)
Arizona Department of Real Estate
Recipient of Order
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of Order
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of Order
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of Order
ncano (ADRE staff)
Arizona Department of Real Estate
Recipient of Order

Other Participants

Sarah Nelson (board member (elected))
Vistoso Community Association
Recipient of votes in disputed election
Patrick Straney (board member (elected))
Vistoso Community Association
Recipient of votes in disputed election
Dennis Ottley (board member (elected))
Vistoso Community Association
Recipient of votes in disputed election

Jason West vs. Desert Sage Two Homeowners Association

Posted on October 1, 2019 by [email protected]

Case Summary

Case ID	19F-H1919065-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-10-01
Administrative Law Judge	Diane Mihalsky
Outcome	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.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jason West	Counsel	—
Respondent	Desert Sage Two Homeowners Association	Counsel	Bradley R. Jardine

Alleged Violations

A.R.S. § 33-1804(B) and Bylaw 1.5

Outcome Summary

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

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Decision Documents

19F-H1919065-REL Decision – 742075.pdf

Uploaded 2026-04-24T11:21:02 (159.4 KB)

19F-H1919065-REL Decision – 742075.pdf

Uploaded 2026-01-23T17:29:36 (159.4 KB)

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: 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?

Case Participants

Petitioner Side

Jason West (petitioner)

Respondent Side

Bradley R. Jardine (HOA attorney)
Jardine, Baker, Hickman, & Houston, PLLC
Represented Respondent
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

Marc D Archer v. PMPE Community Association, Inc.

Posted on September 3, 2019 by [email protected]

Case Summary

Case ID	19F-H1919063-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-09-03
Administrative Law Judge	Velva Moses-Thompson
Outcome	The ALJ ruled in favor of the Respondent (HOA) and dismissed the petition. The HOA's rejection of the flat roof design was found to be reasonable and consistent with the architectural rules requiring pitched roofs to predominate and designs to be harmonious with surrounding structures.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Marc D. Archer	Counsel	—
Respondent	PMPE Community Association, Inc.	Counsel	Nichols C. Hogami

Alleged Violations

A.R.S. § 33-1817(3)

Outcome Summary

The ALJ ruled in favor of the Respondent (HOA) and dismissed the petition. The HOA's rejection of the flat roof design was found to be reasonable and consistent with the architectural rules requiring pitched roofs to predominate and designs to be harmonious with surrounding structures.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the HOA violated the statute; the evidence showed the HOA's decision was based on valid architectural rules.

Key Issues & Findings

Unreasonable withholding of architectural approval

Petitioner sought approval for a garage addition with a flat roof. The Board denied final approval because the design was not harmonious with surrounding structures (pitched roofs) and did not meet the exception for hidden flat roofs.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1817(3)
A.R.S. Title 32, Ch. 20, Art. 11
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.09

Video Overview

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Decision Documents

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Administrative Law Judge Decision: Archer v. PMPE Community Association, Inc.

Executive Summary

This document provides a detailed briefing on the administrative hearing between Petitioner Marc D. Archer and Respondent PMPE Community Association, Inc. (Case No. 19F-H1919063-REL). The dispute centered on the Petitioner's proposal to construct a garage addition with a flat roof, which the Association Board declined to approve in its final form.

The Petitioner alleged that the Association unreasonably withheld approval in violation of Arizona Revised Statutes (A.R.S.) § 33-1817(3), arguing that the design was harmonious and that the Association’s enforcement of rules was arbitrary and discriminatory. The Association maintained that its governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and Architectural Rules—prioritize pitched roofs and visual harmony with surrounding structures.

On September 3, 2019, Administrative Law Judge Velva Moses-Thompson ruled in favor of the PMPE Community Association, dismissing the petition. The Judge concluded that the Petitioner failed to prove by a preponderance of the evidence that the Association acted unreasonably or violated statutory requirements.

Analysis of Key Themes

1. Architectural Harmony and Structural Consistency

The primary conflict arose from the discrepancy between the Petitioner's proposed design and the existing aesthetic of the community. While the Petitioner’s residence already featured a pitched roof on the existing garage, his plan for the addition utilized a flat roof.

Respondent’s Position: The Association argued that pitched roofs are a fundamental component of the community's visual environment and must predominate.
Petitioner’s Position: Archer argued the flat roof was harmonious because it mirrored a pitched roof/flat patio combination on the opposite side of his home.
Legal Finding: The judge found that the Association’s insistence on a pitched roof was reasonable, as the proposed flat roof was inconsistent with the existing structures, including Archer's own pitched garage roof.

2. The "Visible From Neighboring Property" Standard

A critical point of contention was whether the proposed addition violated visibility standards set forth in CC&R 1.34.

The 9-Foot Threshold: The adjoining wall was 9 feet tall. The Petitioner’s proposed flat roof would exceed this height.
The Visibility Rule: Under CC&R 1.34, an object is "visible from neighboring property" if it can be seen by a person six feet tall standing at ground level on an adjoining lot or common area. However, objects in a backyard that do not exceed the height of the enclosing wall are exempt from this definition.
Association's Compromise: The Board indicated it would allow a flat roof only if its height remained below the adjacent wall to ensure it was not visible from neighboring properties.

3. Allegations of Arbitrary Enforcement

The Petitioner attempted to demonstrate that the Association enforced CC&Rs inconsistently. He cited instances where other homeowners allegedly:

Kept a kitchen countertop in a front yard for nearly a year.
Constructed patio additions that were purportedly not harmonious with surrounding structures.
Kept a cart on their property longer than allowed.

The Association denied these claims, asserting consistent enforcement. Ultimately, the court found the Petitioner's evidence insufficient to prove that the Association’s specific decision regarding his garage was discriminatory or arbitrary.

4. Statutory and Contractual Compliance

The decision reinforced the legal standing of CC&Rs as contracts.

A.R.S. § 33-1817(3): This statute prohibits associations from "unreasonably" withholding approval of architectural plans.
Contractual Obligation: Citing Johnson v. The Pointe Community Association, the ruling noted that CC&Rs are contracts and all parties are required to comply with their terms.
Burden of Proof: The Petitioner held the burden of proof to show a violation by a "preponderance of the evidence." The court defined this as the "greater weight of the evidence" or "evidence that has the most convincing force."

Important Quotes and Context

Quote	Context
"“Visible From Neighboring Property” means… that such object is or would be visible to a person six feet tall, standing at ground level on any part of the adjoining Lot or Common Area."	CC&R 1.34 Definition: Establishes the objective physical standard used to determine if a structure infringes on the community's visual environment.
"Since roofscapes will form an important part of the visual environment, they must be carefully designed. It is intended that pitched roofs predominate."	PMPE Architectural Rules Section 4.4: The specific guideline the Board used to justify requiring a pitched roof instead of a flat one.
"The Board… may promulgate architectural design, with particular regard to the harmony of the design with the surrounding structures and topography."	CC&R Article 5.10: Grants the Board the legal authority to judge the "harmony" of a project, which was central to their rejection of Archer's plans.
"Mr. Archer failed to prove by a preponderance of the evidence that PMPE violated A.R.S. § 33-1817(3)."	Conclusion of Law: The final determination that the Petitioner's arguments regarding unreasonable withholding of approval were legally insufficient.

Actionable Insights for Stakeholders

For Homeowners’ Associations (HOAs)

Maintain Clear Definitions: The use of specific measurements (e.g., the "six-foot tall person" standard in CC&R 1.34) provides a defensible, objective basis for architectural decisions.
Document "Harmony": When rejecting a plan based on "harmony with surrounding structures," associations should point to specific existing architectural features (like pitched roofs) that the proposal contradicts.
Offer Conditional Approvals: The Board’s willingness to allow the flat roof if it remained below the wall height demonstrated a reasonable attempt at compromise, which likely supported their "reasonable" standing in court.

For Homeowners

Align with Predominant Features: If governing documents state that a certain style (like pitched roofs) must "predominate," proposing a different style for a large addition carries a high risk of rejection.
Understand the Burden of Proof: In administrative hearings regarding A.R.S. § 33-1817(3), the homeowner must provide "convincing force" that the Board's decision was unreasonable. Simply pointing to other minor violations in the neighborhood (like a countertop in a yard) may not be enough to prove discriminatory enforcement regarding structural additions.
Review Visibility Restrictions: Before designing additions, homeowners should measure existing perimeter walls, as these often serve as the height limit for structures to remain exempt from "Visible From Neighboring Property" restrictions.

Archer v. PMPE Community Association: Administrative Law Case Study

This study guide provides a comprehensive overview of the administrative hearing between Marc D. Archer and the PMPE Community Association, Inc. (No. 19F-H1919063-REL). It covers the legal standards, architectural regulations, and the specific findings of fact that led to the dismissal of the petitioner's claim regarding homeowners' association (HOA) architectural approvals.

Key Concepts and Legal Principles

1. Architectural Standards and Harmony

Under the PMPE CC&Rs and Architectural Rules, specific design principles govern modifications to residences.

Predominance of Pitched Roofs: According to Architectural Rule 4.4, pitched roofs are intended to predominate because roofscapes form a vital part of the visual environment.
Design Harmony: Article 5.10 grants the Board or Architectural Committee the authority to evaluate designs based on their harmony with surrounding structures and topography.
Flat Roof Requirements: While flat roofs are permitted in some instances (such as patio areas), they must have parapets. In this case, the Board allowed a flat roof only if it remained below the height of the adjacent wall to ensure it was not visible from neighboring properties.

2. "Visible From Neighboring Property"

CC&R 1.34 establishes a specific objective standard for determining visibility:

The Six-Foot Standard: An object is considered visible if it can be seen by a person six feet tall standing at ground level on any part of an adjoining lot or common area.
The Wall Exception: Objects in a backyard enclosed by a wall are not deemed "visible" if they do not exceed the height of that wall. In this case, the wall height was established at 9 feet.

3. Legal Standards of Proof and Authority

Jurisdiction: The Arizona Department of Real Estate (ADRE) has authority over these matters pursuant to A.R.S. Title 32, Ch. 20, Art. 11.
Statutory Restriction (A.R.S. § 33-1817(3)): An association is legally prohibited from "unreasonably" withholding approval of architectural plans.
Preponderance of the Evidence: This is the standard of proof required at the hearing. It is defined as the "greater weight of the evidence" or evidence that possesses the most "convincing force," inclining an impartial mind toward one side of the issue.
Contractual Nature of CC&Rs: In Arizona, CC&Rs are viewed as a contract between the parties. If the terms are clear and unambiguous, they must be enforced to give effect to the intent of the parties.

Short-Answer Practice Questions

1. What was the specific height of the adjoining wall in the Archer residence dispute?

The adjoining wall was 9 feet high.

2. According to CC&R 1.34, how is a person's height and position defined when determining if an object is "Visible From Neighboring Property"?

The person is defined as being six feet tall and standing at ground level on any part of the adjoining Lot or Common Area.

3. What was the Board’s primary reason for refusing final approval of Mr. Archer’s garage addition?

The Board learned that the addition would have a flat roof enclosed on all sides with a height exceeding the 9-foot adjoining wall, making it visible from neighboring properties.

4. What does A.R.S. § 33-1817(3) stipulate regarding an HOA’s power over construction plans?

It stipulates that an association shall not unreasonably withhold approval of a construction project’s architectural plans.

5. How does PMPE Architectural Rule 4.4 describe the preferred style for roofs?

It states that roofscapes are an important part of the visual environment and that it is intended for pitched roofs to predominate.

6. On what grounds did Mr. Archer argue that the Board's enforcement of the CC&Rs was "arbitrary and discriminatory"?

He contended that the Board allowed other homeowners to have non-harmonious patio additions, a kitchen countertop in a front yard for nearly a year, and a cart for longer than allowed.

Essay Prompts for Deeper Exploration

1. The Balance of Reasonableness in HOA Governance

A.R.S. § 33-1817(3) prohibits an HOA from "unreasonably" withholding approval. Analyze the Board's decision in Archer v. PMPE through the lens of this statute. Consider whether the Board's willingness to allow a flat roof only if it remained below the wall height constitutes a reasonable compromise or an arbitrary restriction, given the neighborhood's preference for pitched roofs.

2. Consistency and Selective Enforcement

Mr. Archer alleged that the HOA practiced arbitrary and discriminatory enforcement by highlighting violations by other residents (e.g., the kitchen countertop and carts). Discuss the legal challenge of proving selective enforcement in an administrative hearing. Why did the Administrative Law Judge find these arguments insufficient to prove that the Board violated the law in Mr. Archer's specific case?

3. Contractual Interpretation of CC&Rs

Arizona law treats CC&Rs as contracts. Explore the implications of this classification. If a CC&R clearly defines a term like "Visible From Neighboring Property," to what extent does the Board have discretion to deviate from that definition? Discuss how the "unambiguous" nature of the PMPE CC&Rs influenced the Judge's final decision.

Glossary of Important Terms

Term	Definition
A.R.S. § 33-1817(3)	The Arizona Revised Statute that prevents HOAs from unreasonably withholding architectural plan approvals.
Administrative Law Judge (ALJ)	The presiding official (in this case, Velva Moses-Thompson) who hears evidence and issues a decision in administrative disputes.
CC&Rs	Covenants, Conditions, and Restrictions; the legal governing documents that dictate the rules and residents' obligations within a community.
Harmony of Design	A criteria used by the Board to ensure that new construction matches the existing aesthetics and topography of surrounding structures.
Parapet	A low protective wall along the edge of a roof; required for all flat roof patio areas under PMPE Architectural Rules.
Pitched Roof	A sloping roof; the architectural style that the PMPE rules state should "predominate" in the community.
Preponderance of the Evidence	The legal standard of proof requiring that a claim is more likely to be true than not (the "greater weight" of evidence).
Respondent	The party against whom a petition is filed; in this case, PMPE Community Association, Inc.
Visible From Neighboring Property	An object visible to a six-foot person at ground level on an adjoining lot; objects below the height of a backyard wall are exempt.

Roof Wars: Lessons in HOA Architectural Compliance and Community Standards

1. Introduction: The Conflict Under the Eaves

For homeowners, the boundary between personal property rights and community governance is often defined by the roofline. While a property owner may view a garage addition as a functional necessity, a Homeowners Association (HOA) views that same structure through the lens of aesthetic uniformity and "harmony of design." This tension is the focal point of Marc D. Archer vs. PMPE Community Association, Inc. (No. 19F-H1919063-REL), a case that highlights the legal complexities of architectural compliance.

The core dispute involved a homeowner’s attempt to construct a flat-roof garage addition in a community where pitched roofs are the mandated standard. This case provides a critical look at how administrative courts evaluate "reasonableness" and the high evidentiary bar homeowners must clear when alleging arbitrary enforcement by a Board.

2. The Project and the Initial Denial

Upon review of the Findings of Fact, the dispute began in September 2017 when the Petitioner, Mr. Archer, submitted plans for a garage addition to the Respondent, the PMPE Board. While the Board initially issued a preliminary approval, they withheld final authorization after a detailed review revealed that the proposed structure deviated from the community's architectural standards.

The proposed addition included the following specifications:

Roof Style: A flat roof design, enclosed on all sides.
Height: A structure reaching a height that would exceed the 9-foot adjoining wall.
Visual Relationship: The new flat roof would be physically attached to the Petitioner’s existing garage, which featured an arched/pitched roof.

Critically, the Board did not issue a blanket denial. In an attempt at compromise, the Board notified the Petitioner that the flat roof would be acceptable if—and only if—the height remained below the adjacent wall. This would have utilized the visibility exception in the CC&Rs. However, the Petitioner insisted on a height exceeding the wall, leading to the final denial and subsequent legal challenge.

3. Defining "Visible From Neighboring Property"

The legal pivot point of this case rests on the definition of visibility. If a structure is "visible," it is subject to the full weight of the HOA’s architectural guidelines.

Terms to Know: "Visible From Neighboring Property" Under PMPE CC&R 1.34, an object is "Visible From Neighboring Property" if it can be seen by a six-foot-tall person standing at ground level on any portion of an adjoining lot or common area. The Exception: An object located in a backyard enclosed by a wall is not deemed visible if it does not exceed the height of the wall enclosing that backyard. This "wall height" standard is a safe harbor for homeowners, but once a structure rises above that line, it falls under Board jurisdiction for aesthetic harmony.

4. The Homeowner's Challenge: Claims of Arbitrary Enforcement

The Petitioner challenged the denial under A.R.S. § 33-1817(3), asserting that the Board was unreasonably withholding approval. He presented three primary arguments to the Administrative Law Judge (ALJ):

Harmony of Design: The Petitioner argued the flat roof was harmonious because it mirrored the opposite side of his home, which featured a pitched roof adjacent to a flat-top patio.
Inconsistent Enforcement: He alleged that the HOA was targeting him while ignoring violations by other neighbors, thereby acting in an arbitrary and discriminatory manner.
Specific Examples of Non-Compliance: To support the claim of inconsistency, he cited "whataboutism" examples, such as a neighbor keeping a kitchen countertop in a front yard for a year and others leaving carts in yards past allowable timeframes.

5. The HOA’s Defense: The Predominance of Pitched Roofs

The Respondent argued that the Petitioner's request would violate the fundamental "roofscape" of the community. Their defense was rooted in the specific technical requirements of the governing documents:

HOA Rule/Article	Specific Design Requirement
Article 5.10	Grants the Board/Architectural Committee authority to promote design with particular regard to harmony with surrounding structures and topography.
Section 4.4 (Architectural Rules)	Establishes that roofscapes are vital to the visual environment; it is mandated that pitched roofs predominate.
Section 4.4 (Technical Specs)	Pitched roofs must be hipped whenever possible and maintain a maximum slope of five to 12 feet (5’ to 12’).
Section 4.4 (Flat Roofs)	While flat roofs are generally discouraged, all flat roof patio areas must have parapets.

The Respondent emphasized that since the Petitioner’s existing garage featured a pitched roof, an attached flat-roof addition would create a jarring architectural disconnect.

6. The Administrative Decision: Why the HOA Prevailed

Administrative Law Judge Velva Moses-Thompson applied the "Preponderance of the Evidence" standard, as required by Arizona Administrative Code R2-19-119. Under this standard, the Petitioner must prove their case with "the greater weight of the evidence"—meaning the evidence must be more than 50% convincing. In administrative law, a "tie" or a 50/50 split in evidence means the Petitioner has failed to meet their burden, and the HOA prevails.

The ALJ's ruling for the Respondent was based on two key legal conclusions:

Reasonableness of the Board: The Board’s decision was deemed reasonable under A.R.S. § 33-1817(3) because the rules explicitly prioritize pitched roofs. The Board's offer of a compromise (keeping the roof below wall height) further demonstrated a lack of malice or unreasonableness.
The Failure of "Whataboutism": The judge dismissed the Petitioner’s claims regarding kitchen countertops and yard carts. Legally, the failure to enforce minor maintenance or "clutter" rules does not waive an HOA's right to enforce major, permanent structural and architectural standards. Structural harmony is a distinct legal tier from temporary yard maintenance.

7. Conclusion: 4 Essential Takeaways for Homeowners

The dismissal of the Petitioner’s case provides a roadmap for navigating architectural disputes in Arizona:

Understand the "Harmony" Clause: Architectural harmony is not just about matching your neighbors; it is about matching the existing structures on your own lot. As established in Johnson v. The Pointe Community Association, CC&Rs are binding contracts. If your home is designed with pitched roofs, a flat-roof addition is a difficult legal sell.
The Visibility Standard: Your "building rights" are often tied to the height of your perimeter wall. If a structure exceeds the wall height and becomes visible to a six-foot-tall neighbor, you lose the "safe harbor" protection and must strictly adhere to architectural design rules.
The Petitioner’s Burden of Proof: In an administrative hearing, the homeowner carries the heavy lifting. You must prove the Board is being unreasonable. Per Arizona Administrative Code R2-19-119, if the evidence is only equally balanced, the homeowner loses.
Contractual Obligations: Arizona courts, following cases like Powell v. Washburn, treat CC&Rs as unambiguous contracts. Judges will prioritize the clear terms of the document—such as "pitched roofs shall predominate"—to protect the original intent of the community's design.

Homeowners should meticulously review their association's specific "Architectural Rules" before finalizing designs, as these documents often contain technical specifications—like roof slope and parapet requirements—that are just as binding as the CC&Rs themselves.

Case Participants

Petitioner Side

Marc D. Archer (petitioner)
PMPE Community Association, Inc. (Member)
Appeared on behalf of himself; testified

Respondent Side

Nichols C. Hogami (respondent attorney)
Appeared on behalf of Respondent
Keith Scott Kauffman (witness)
PMPE Board of Directors
Member of the PMPE Board of Directors; testified

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of transmitted order

Vicky Glover v. Foothills Community Association

Posted on May 30, 2019 by [email protected]

Case Summary

Case ID	19F-H1919046-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-30
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Vicky Glover	Counsel	—
Respondent	Foothills Community Association	Counsel	B. Austin Baillio

Alleged Violations

A.R.S. § 33-1804

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to establish any violation of A.R.S. § 33-1804 regarding both the DRC's restriction on speaking during specific deliberations and the use of email communications for non-regularly scheduled committee business.

Why this result: The Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, specifically because the DRC's restrictions on speaking were deemed reasonable, and email communications were not considered 'regularly scheduled committee meetings' requiring public access.

Key Issues & Findings

Open Meetings and Member Right to Speak (DRC and Email Meetings)

Petitioner alleged Respondent violated A.R.S. § 33-1804 by denying her the ability to speak at DRC meetings on other members’ requests, and by conducting deliberations and making decisions via email outside of regularly scheduled meetings.

Orders: Petitioner's petition is denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Cited:

A.R.S. § 33-1804
A.R.S. Title 33, Chapter 16, Sections 33-1801 to 33-1818

Analytics Highlights

Topics: HOA, Design Review Committee, Open Meetings, Right to Speak, Email Meetings, A.R.S. 33-1804

Additional Citations:

A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
A.R.S. § 33-1804
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

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Decision Documents

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Briefing Document: Glover v. Foothills Community Association (Case No. 19F-H1919046-REL)

Executive Summary

This document summarizes the Administrative Law Judge Decision in the case of Vicky Glover versus the Foothills Community Association (FCA), where the petitioner’s claims were denied. The petitioner alleged that the FCA’s Design Review Committee (DRC) violated Arizona’s open meeting laws (A.R.S. § 33-1804) on two fronts: first, by conducting unannounced “email meetings” to vote on non-emergency matters, and second, by preventing members from speaking at appropriate times during regularly scheduled DRC meetings.

The Administrative Law Judge (ALJ), Tammy L. Eigenheer, concluded that the petitioner failed to prove any statutory violation. The decision rested on a strict textual interpretation of A.R.S. § 33-1804. Regarding speaking rights, the ALJ determined that while members have a right to speak at an “appropriate time” in committee meetings, the more specific right to speak on an agenda item before a formal vote applies exclusively to Board of Directors meetings, not committee meetings. The judge found it was reasonable for the DRC to rule that a member speaking on another member’s application was not an “appropriate time.”

Concerning the email communications, the ALJ ruled that they do not constitute “regularly scheduled committee meetings” as defined by the statute. Because the email discussions and decisions did not occur at a set weekly, monthly, or quarterly time, they are not subject to the open meeting requirements. The general state policy favoring open meetings was found to be subordinate to the specific statutory language. The petition was therefore denied in its entirety.

——————————————————————————–

Case Overview

This case involved a dispute between a homeowner and a homeowners association regarding the application of Arizona’s open meeting laws to a committee of the association.

Name / Entity

Representation / Title

Petitioner

Vicky Glover

Appeared on her own behalf

Respondent

Foothills Community Association (FCA)

B. Austin Baillio (Maxwell & Morgan, P.C.)

Adjudicator

Tammy L. Eigenheer

Administrative Law Judge

Jurisdiction

Office of Administrative Hearings

Phoenix, Arizona

Case Timeline

• December 13, 2018 & January 9, 2019: Petitioner attends and records DRC meetings where the alleged violations occurred.

• January 23, 2019: Vicky Glover files a petition with the Arizona Department of Real Estate.

• January 28, 2019: The Department issues a notice to the FCA regarding the petition.

• May 10, 2019: An administrative hearing is held.

• May 30, 2019: The Administrative Law Judge issues the final decision.

——————————————————————————–

Petitioner’s Allegations

The petitioner, Vicky Glover, alleged that the Foothills Community Association violated Arizona Revised Statutes (A.R.S.) § 33-1804 in two specific ways:

1. Improper Email Meetings: The FCA’s Design Review Committee (DRC) held unannounced meetings via email to vote on non-emergency matters, which should have been handled in open, public meetings.

2. Denial of Speaking Rights: The DRC refused to allow community members, including the petitioner, to speak at an appropriate time during its regularly scheduled meetings, specifically when she wished to speak on other members’ pending requests.

Key Factual Findings

The facts underlying the petition were not in dispute by the parties during the hearing. The key findings of fact established were:

• Organizational Structure:

◦ The FCA Board of Directors is comprised of seven members and meets on the fourth Wednesday of the month at 6:00 p.m.

◦ The Design Review Committee (DRC) is appointed by the Board, is comprised of five members (two of whom are also on the Board), and meets on the second Wednesday of the month at 2:00 p.m.

• Events at DRC Meetings:

◦ On December 13, 2018, and January 9, 2019, Vicky Glover attended and recorded DRC meetings.

◦ During these meetings, she was not permitted to speak on issues being discussed related to other members’ pending requests.

• Use of Email by the DRC:

◦ During meetings, DRC members mentioned that additional information for certain requests would be shared via email after the meeting.

◦ Based on this emailed information, DRC members would approve or deny the request.

◦ Decisions made via email between meetings were formally “ratified” at the subsequent DRC meeting.

◦ FCA Manager Pat Wontor testified, denying that the DRC took initial action via email, asserting instead that emails were only used to gather additional information on matters that had already been discussed in an open meeting.

• DRC Policies: A request submitted to the DRC is deemed approved if it is not denied within 60 days.

——————————————————————————–

Legal Analysis and Judge’s Conclusions

The Administrative Law Judge’s decision centered on a strict interpretation of the plain language of A.R.S. § 33-1804. The petitioner bore the burden of proving a violation by a preponderance of the evidence and failed to do so on both counts.

I. Member Speaking Rights at Committee Meetings

The judge analyzed the petitioner’s claim that she was wrongfully denied the right to speak at DRC meetings.

• Governing Statute: A.R.S. § 33-1804(A) states that at “any regularly scheduled committee meetings… all members… shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”

• ALJ’s Interpretation: The judge found a critical distinction within the statute’s text. A later clause specifies that “the board… shall permit a member… to speak once after the board has discussed a specific agenda item but before the board takes formal action on that item.”

• Conclusion: The judge ruled that this specific right to speak on an item before a vote applies only to meetings of the Board of Directors, not to committee meetings. For committee meetings, the standard is the more general “appropriate time.” The ALJ concluded it was reasonable for the DRC to determine that having one member speak on another member’s private application was not an “appropriate time.” Therefore, the DRC’s refusal to allow the petitioner to speak did not violate the statute.

II. Email Deliberations and “Meetings”

The judge next addressed the claim that email communications constituted illegal, non-public meetings.

• Governing Statute: A.R.S. § 33-1804(A) mandates that open meeting rules apply to “regularly scheduled committee meetings.”

• ALJ’s Interpretation: The judge concluded that the email discussions, deliberations, and decisions among DRC members did not meet the definition of “regularly scheduled.” These communications did not occur at a set time on a recurring basis (e.g., weekly, monthly, quarterly). While they could be considered a form of meeting, they were not regularly scheduled ones.

• Effect of State Policy: The judge acknowledged the policy statement in A.R.S. § 33-1804(F), which expresses a legislative preference for open meetings. However, the judge ruled that this general policy “does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

• Conclusion: Because the email communications were not regularly scheduled, they did not fall under the open meeting requirements of the statute, and no violation occurred.

Final Order and Implications

Based on the legal analysis, the Administrative Law Judge found that the petitioner did not establish any violation of A.R.S. § 33-1804.

• Final Order: “IT IS ORDERED that Petitioner’s petition is denied.”

• Next Steps: The decision is binding on the parties. A party may file a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 32-2199.04 and § 41-1092.09.

Study Guide: Glover v. Foothills Community Association (No. 19F-H1919046-REL)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Vicky Glover (Petitioner) and the Foothills Community Association (Respondent). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined and used within the source document.

Quiz: Short-Answer Questions

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

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

2. What were the two specific violations of state statutes that the Petitioner alleged?

3. Describe the composition and meeting schedules of the Board of Directors and the Design Review Committee (DRC).

4. What specific action did the Petitioner take during the DRC meetings on December 13, 2018, and January 9, 2019?

5. According to the decision, what was the DRC’s practice regarding decisions made via email between meetings?

6. What is the standard of proof the Petitioner was required to meet, and how does the decision define it?

7. How did the Administrative Law Judge interpret the statutory phrase “an appropriate time” for a member to speak during a committee meeting?

8. Why did the Judge conclude that the DRC’s email communications did not violate the open meeting requirements of A.R.S. § 33-1804?

9. What was the final ruling, or Order, issued by the Administrative Law Judge in this case?

10. What recourse did the parties have if they disagreed with the Judge’s order?

Answer Key

1. The primary parties were Vicky Glover, the Petitioner who filed the complaint, and the Foothills Community Association (FCA), the Respondent homeowners association. The case was heard by Administrative Law Judge Tammy L. Eigenheer in the Office of Administrative Hearings.

2. The Petitioner alleged that the Respondent violated state statutes by holding unannounced email meetings to vote on non-emergency matters. She also alleged that the Respondent would not allow community members to speak at appropriate times during Design Review Committee (DRC) meetings.

3. The Board of Directors has seven members and meets at 6:00 p.m. on the fourth Wednesday of the month. The Design Review Committee (DRC) is appointed by the Board, has five members (two of whom are also on the Board), and meets at 2:00 p.m. on the second Wednesday of the month.

4. During the DRC meetings on December 13, 2018, and January 9, 2019, the Petitioner attended and recorded the proceedings. She was not allowed to speak on other members’ pending requests during these meetings.

5. The DRC would gather additional information via email after a meeting and members would then approve or deny the request via email. Any decisions made via email between DRC meetings were then “ratified” at the next formal DRC meeting.

6. The Petitioner had the burden of proving her case by a “preponderance of the evidence.” The decision defines this as evidence that is of greater weight or more convincing than the opposing evidence, showing the fact sought to be proved is more probable than not.

7. The Judge determined that the statute does not define what constitutes “an appropriate time” to speak at a committee meeting. Therefore, it was reasonable for the DRC to decide that the deliberation regarding a different member’s request was not an appropriate time for the Petitioner to speak.

8. The Judge concluded that email communications are not “regularly scheduled committee meetings” because they do not occur at a set time on a weekly, monthly, quarterly, or annual basis. Since A.R.S. § 33-1804 only requires regularly scheduled committee meetings to be open, the email discussions were not a violation.

9. The final Order was that the Petitioner’s petition is denied. The Administrative Law Judge concluded that the Petitioner did not establish any violation of A.R.S. § 33-1804.

10. Pursuant to A.R.S. §32-2199.02(B), the order is binding unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Essay Questions

Instructions: The following questions are designed for longer-form essay responses to encourage a deeper synthesis of the case details and legal reasoning. Answers are not provided.

1. Analyze the Administrative Law Judge’s statutory construction of A.R.S. § 33-1804. How does the judge distinguish between the open meeting requirements for Board of Directors meetings versus committee meetings, and what role does the “plain language” of the statute play in this interpretation?

2. Discuss the two central allegations made by Vicky Glover. For each allegation, detail the undisputed facts of the events and explain the specific legal reasoning the judge used to conclude that no statutory violation occurred.

3. Examine the conflict between the state’s declared policy in favor of open meetings (A.R.S. § 33-1804(F)) and the specific statutory language governing committee meetings (A.R.S. § 33-1804(A)). How did the judge resolve this apparent conflict in her final decision?

4. Based on the “Findings of Fact,” describe the operational procedures of the Design Review Committee, including its use of email for decision-making and subsequent ratification. How did these procedures become central to the legal dispute?

5. Explain the concept of “burden of proof” as it applied in this case. How did the standard of “preponderance of the evidence” shape the proceedings, and why was the Administrative Law Judge’s conclusion that the Petitioner “did not establish” a violation critical to the final order?

Glossary of Key Terms

Definition from Source Context

Administrative Law Judge

Tammy L. Eigenheer, the judge who presided over the hearing and issued the decision in this case.

A.R.S. § 33-1804

The Arizona Revised Statute that the Petitioner alleged was violated. It governs open meetings for planned communities, including member associations, boards of directors, and regularly scheduled committees.

Arizona Department of Real Estate (Department)

The state agency with which the Petitioner filed her petition and which has jurisdiction to hear disputes between property owners and condominium owners associations.

Board of Directors

The governing body of the Foothills Community Association, comprised of seven members. It appoints the Design Review Committee.

Design Review Committee (DRC)

A five-member committee appointed by the Board of Directors. Two of its members are also on the Board. The DRC’s meetings were the subject of the Petitioner’s complaint.

Foothills Community Association (FCA)

The Respondent in the case. An association of homeowners located in Phoenix, Arizona.

Petitioner

Vicky Glover, who filed a petition on January 23, 2019, with the Arizona Department of Real Estate against the Foothills Community Association.

Preponderance of the evidence

The burden of proof required of the Petitioner. It is defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

Ratified

The term used to describe the process where decisions made by the DRC via email between meetings were formally approved at the next DRC meeting.

Regularly scheduled committee meetings

The specific type of meeting subject to the open meeting requirements of A.R.S. § 33-1804. The Judge concluded that email communications do not meet this definition as they do not occur at a set time.

Respondent

The Foothills Community Association (FCA), against which the petition was filed. Represented in the hearing by B. Austin Baillio.

Statutory Construction

The process of interpreting a statute. The primary goal is to ascertain the legislature’s intent, first by looking at the plain text of the statute.

3 Shocking Loopholes in HOA ‘Open Meeting’ Laws This Homeowner Discovered the Hard Way

Introduction: The Illusion of Transparency

For anyone living in a homeowner’s association (HOA), there’s a fundamental expectation: the business of the community is conducted in the open. We assume that as members, we have a right to attend meetings, understand the decisions being made, and voice our opinions before our board takes action.

But a startling court decision from an Arizona Administrative Law Judge throws a wrench in that assumption. One homeowner’s legal challenge against her association didn’t just fail—it inadvertently created a roadmap for how HOAs can legally operate behind closed doors, affecting millions of residents in planned communities.

This article will break down the three most counter-intuitive takeaways from this legal battle, revealing how the specific wording of the law can create major gaps in transparency and challenge everything you thought you knew about your rights as a homeowner.

1. Your Right to Speak is Weaker Than You Think—Especially in Committee Meetings

Most homeowners believe they have a protected right to speak on any agenda item at any official HOA meeting. The case of petitioner Vicky Glover shows this is a dangerous assumption.

On December 13, 2018, and January 9, 2019, Ms. Glover attended meetings of her community’s Design Review Committee (DRC) and was not permitted to speak about other members’ pending architectural requests. She argued this violated Arizona’s open meeting law for planned communities (A.R.S. § 33-1804).

The Administrative Law Judge (ALJ), however, pointed out a critical distinction in the law’s text. The statute explicitly guarantees a member the right “to speak once after the board has discussed a specific agenda item but before the board takes formal action.” This specific right, the ALJ concluded, applies only to meetings of the Board of Directors.

For committee meetings, the law sets a much vaguer standard, requiring only that members “be permitted to attend and speak at an appropriate time.” The ALJ found it was reasonable for the DRC to decide that having Ms. Glover speak on another member’s application was not an “appropriate time.”

This is a crucial distinction because committees—like architectural, design, or finance committees—often make the decisions that most directly impact homeowners’ property and daily lives. Yet, this ruling clarifies that the guaranteed right to be heard before a vote is taken is significantly weaker in those very forums.

2. “Email Meetings” Can Be a Legal Way to Sidestep Open Meeting Rules

The common understanding of open meeting laws is that they exist to prevent boards and committees from deliberating and making decisions in private. But what if the meeting doesn’t happen in a room, but in an email chain?

Ms. Glover’s second claim was that the DRC was conducting business and making decisions via email between its official meetings. Evidence showed that after a meeting, additional information would be shared with committee members who could then “approve or deny the request… via email.” The association’s manager, Pat Wontor, denied this, claiming emails were only used to gather information on matters already discussed in a meeting.

The ALJ’s conclusion on this matter was stunning and sidestepped the conflicting testimony entirely. The Arizona open meeting law in question only applies to “regularly scheduled committee meetings.” Because email exchanges do not occur at a set, scheduled time—like the second Wednesday of the month—the judge ruled they do not fall under the open meeting requirements of the statute, regardless of their content.

The implication of this loophole is profound. It allows a committee to conduct significant deliberation and decision-making entirely outside of public view. This practice can turn the open meeting into a hollow formality. A committee can present a “done deal” for public ratification, rendering the member’s right to observe and speak effectively meaningless. The public meeting becomes a theatrical rubber stamp for a decision already made in secret.

3. The “Spirit of the Law” Doesn’t Beat the Letter of the Law

Many laws contain a policy statement that outlines their overarching goal—the “spirit of the law.” Arizona’s statute on HOA meetings has an exceptionally strong one, stating that all meetings should be open and that the law should be interpreted to favor transparency. The text explicitly declares:

“It is the policy of this state as reflected in this section that all meetings of a planned community… be conducted openly… and shall construe any provision of this section in favor of open meetings.” (from A.R.S. § 33-1804(F))

Ms. Glover and many homeowners would read this and assume it guarantees broad transparency. The ALJ, however, ruled that this powerful policy statement “does not override the specific provisions” of the law.

In other words, the literal, specific text—like the distinction between “board” and “committee” meetings, or the “regularly scheduled” requirement—takes precedence over the law’s general intent.

This is perhaps the most important lesson for all homeowners. Relying on the assumed purpose or “spirit” of a rule is not enough. In a legal dispute, the precise, technical wording is what matters most. It highlights the critical importance for homeowners to read and understand the exact text of state statutes and their own governing documents, because the loopholes are often found in the fine print.

Conclusion: Knowledge is Your Best Defense

While Vicky Glover lost her petition, her case provides an invaluable education for every member of a community association. It is a stark warning that transparency in an HOA is not a guaranteed principle but a legal standard with specific, and at times counter-intuitive, boundaries that can be exploited.

The loopholes her case exposed reveal a sobering reality: your right to speak is conditional, “meetings” can legally occur out of sight in an email chain, and the stated “spirit” of the law can be rendered toothless by its literal text. HOA governance is not guided by general principles of fairness, but by very specific legal language.

Given these loopholes, it’s worth asking: How many of the most important decisions in your community are happening in an inbox instead of the boardroom?

Case Participants

Petitioner Side

Vicky Glover (petitioner)

Respondent Side

B. Austin Baillio (respondent attorney)
Maxwell & Morgan, P.C.
Pat Wontor (manager)
Manager for DRC/Foothills Community Association

Neutral Parties

Tammy L. Eigenheer (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

Del Sol (staff/clerk)
Transmitting staff

David & Brenda Norman v. Rancho Del Lago Community Association

Posted on May 28, 2019 by [email protected]

Case Summary

Case ID	19F-H1919051-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-28
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	David and Brenda Norman	Counsel	—
Respondent	Rancho Del Lago Community Association	Counsel	Ashley N. Moscarello

Alleged Violations

CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.

Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).

Key Issues & Findings

Alleged violation by HOA approving a block wall built by neighbors (Hendersons)

Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.

Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199.01(A)(1)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Analytics Highlights

Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs

Additional Citations:

A.R.S. § 32-2199.01(A)(1)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. § 32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

19F-H1919051-REL Decision – 737050.pdf

Uploaded 2026-04-24T11:19:28 (40.9 KB)

19F-H1919051-REL Decision – 710478.pdf

Uploaded 2026-04-24T11:19:32 (150.0 KB)

19F-H1919051-REL Decision – 711115.pdf

Uploaded 2026-04-24T11:19:36 (149.9 KB)

19F-H1919051-REL Decision – 710478.pdf

Uploaded 2026-01-23T17:29:06 (150.0 KB)

19F-H1919051-REL Decision – 711115.pdf

Uploaded 2026-01-23T17:29:10 (149.9 KB)

Case Briefing: Norman v. Rancho Del Lago Community Association

Executive Summary

This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.

The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.

The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.

Case Overview

Parties and Key Entities

Name/Entity

Description

Petitioners

David and Brenda Norman

Homeowners in the Rancho Del Lago Community.

Respondent

Rancho Del Lago Community Association

The homeowners’ association (HOA) for the community.

Neighbors

The Hendersons

The Petitioners’ next-door neighbors who built the disputed wall.

Management Co.

Management Solutions

The company managing the Respondent HOA.

Witness (Respondent)

Spencer Brod

Employee of Management Solutions overseeing the Respondent’s affairs.

Administrative Law Judge

Diane Mihalsky

Presiding judge from the Office of Administrative Hearings.

Regulating Body

Arizona Department of Real Estate

State agency authorized to hear certain HOA disputes.

Adjudicating Body

Office of Administrative Hearings

Independent state agency that conducted the evidentiary hearing.

Procedural Details

Detail

Information

Case Number

19F-H1919051-REL

Petition Filed

On or about February 28, 2019

Hearing Date

May 8, 2019

Amended Decision Date

May 28, 2019

Timeline of Key Events

• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.

• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.

• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.

• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.

• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.

• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.

• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.

• October 13, 2017: The ARC approves the Petitioners’ wall extension request.

• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.

• By November 2017: The Hendersons’ wall appears to have been constructed.

• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.

• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.

Governing Documents and Key Provisions

The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.

Document

Provision

Description

Article I § (p)

Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.

Article II § 2(a)

Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.

Article XII § 1

Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”

Common Project Guidelines

Section 3.11(D)(1)

States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.

Common Project Guidelines

Section 4.21

Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”

Summary of Testimony and Evidence

Testimony of Brenda Norman (Petitioner)

• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.

• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.

• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.

• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.

• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.

Testimony of Spencer Brod (for Respondent)

• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.

• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.

• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.

• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.

• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.

Administrative Law Judge’s Conclusions of Law

The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.

1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.

2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.

3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”

4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.

5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.

6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.

Final Order

IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.

Study Guide: Norman v. Rancho Del Lago Community Association

This guide is designed to review the administrative legal case between homeowners David and Brenda Norman and their homeowners’ association, the Rancho Del Lago Community Association, concerning a dispute over a neighbor’s wall.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing only from the information provided in the case documents.

1. What was the central violation of the homeowners’ association rules alleged by the Petitioners in their February 28, 2019, petition?

2. Identify the three main groups of individuals or entities involved in the dispute: the Petitioners, the Respondent, and the neighbors.

3. According to the Respondent’s CC&Rs, what is a “Party Wall” and what primary responsibility does it create for adjacent homeowners?

4. Describe the two separate wall-related Architectural Variance Requests (AVRs) submitted by the Hendersons in March and April of 2017.

5. Why did the Architectural Review Committee (ARC) initially deny the Petitioners’ request to build a new driveway, and what was the outcome of this denial?

6. What is the role of the “Declarant” within the Rancho Del Lago Community Association, and what influence do they hold over the board and the ARC?

7. The ARC approved a wall proposal for the Petitioners on October 13, 2017. Why did the Petitioners choose not to build this approved wall?

8. According to the CC&Rs, what is the ultimate authority of the Architectural Review Committee (ARC) in rendering its decisions?

9. On what legal grounds did the Administrative Law Judge ultimately dismiss the Petitioners’ case?

10. Who bore the “burden of proof” in this hearing, and what does this legal standard require?

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Quiz Answer Key

1. The Petitioners alleged that the Respondent (the homeowners’ association) violated Section 3.11(D)(1) of the Common Project Guidelines. This section states that “closely parallel walls shall be disapproved,” and the Petitioners argued that the association violated this rule by approving the wall built by their neighbors, the Hendersons.

2. The Petitioners were homeowners David and Brenda Norman. The Respondent was the Rancho Del Lago Community Association. The neighbors, who were central to the dispute but not a party to the case, were the Hendersons.

3. A “Party Wall” is a wall situated on the property line between two or more contiguous lots. It creates a shared right of use and a joint obligation for all adjoining owners to rebuild and repair the wall at their shared expense.

4. The Hendersons first submitted an AVR on March 8, 2017, to extend the existing common party wall, for which Mrs. Norman gave consent. On April 27, 2017, they submitted a different AVR to build a new wall located entirely on their property, 6 inches inside the property line, which did not require the Normans’ consent.

5. The ARC denied the Petitioners’ September 5, 2017, request for an 11-foot wide driveway because a driveway already existed on the opposite side of the house where the garage was located. Despite the denial, the Petitioners built the driveway anyway, which resulted in the Respondent issuing them a Notice of Violation.

6. The “Declarant” is the original developer that built the subdivision. At the time of the hearing, the Respondent association was still under the control of the Declarant, who appointed all three directors of the board and was also a member of the Architectural Review Committee (ARC).

7. The Petitioners did not build the approved wall because the plan required it to be built at least 3 feet inside their property line to avoid being a party wall. Their contractor advised them they would be “crazy to give up the 3’ of property” that would lie between their new wall and the Hendersons’ wall.

8. According to Article XII, § 1 of the CC&Rs, “the decision of the [ARC] shall be sole, absolute and final on all matters submitted to it pursuant to this Declaration and/or the Design Guidelines.”

9. The judge dismissed the case due to a lack of jurisdiction. According to Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate does not have jurisdiction to hear disputes between owners to which the association is not a party. The judge framed the issue as a private dispute between the Normans and the Hendersons.

10. The Petitioners (the Normans) bore the burden of proof to establish that the Respondent violated the community rules. This standard, known as a “preponderance of the evidence,” requires presenting evidence that is more convincing and more likely true than not.

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Essay Questions

Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response to each prompt, citing specific facts and rules from the case documents to support your arguments.

1. Analyze the concept of a “Party Wall” versus a privately-owned wall within the context of this case. How did the distinction between these two types of walls become the central point of contention and influence the decisions made by the Hendersons, the Normans, and the ARC?

2. Discuss the powers and limitations of the Rancho Del Lago Community Association’s Architectural Review Committee (ARC) as outlined in the CC&Rs and Common Project Guidelines. How did the ARC’s discretionary authority, particularly under Section 4.21 of the guidelines, impact the events of this dispute?

3. Trace the timeline of Architectural Variance Requests (AVRs) submitted by both the Normans and the Hendersons. Evaluate how the sequence of approvals, denials, and unbuilt projects contributed to the escalation of the dispute and ultimately led to the legal hearing.

4. Explain the legal reasoning behind the Administrative Law Judge’s final decision. Why was the concept of “jurisdiction” more critical to the outcome than the merits of the Normans’ claim regarding “closely parallel walls”? Refer to the specific Arizona Revised Statute (A.R.S.) cited in the decision.

5. The judge described the potential wall the Petitioners wish to build as an “archetypical spite fence.” Based on the testimony and evidence presented in the case, argue for or against this characterization.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over hearings at the Office of Administrative Hearings and renders decisions on disputes involving state agencies.

Architectural Review Committee (ARC)

A committee established by the Declarant and governed by the CC&Rs, responsible for reviewing and approving or denying any proposed improvements that alter the exterior appearance of properties within the community. Its decisions are described as “sole, absolute and final.”

Architectural Variance Request (AVR)

The formal application submitted by a homeowner to the ARC to request approval for an exterior improvement or modification to their property.

Arizona Department of Real Estate (the Department)

The state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations regarding violations of community documents.

CC&Rs (Covenants, Conditions, and Restrictions)

The legal documents that establish the rules, regulations, and obligations for homeowners within a planned community like Rancho Del Lago.

Closely Parallel Walls

A term from Section 3.11(D)(1) of the Common Project Guidelines that are to be disapproved. The term is not explicitly defined, but testimony suggests a wall 3 feet from another would be approved, making the threshold for “close” less than that.

Common Project Guidelines

A set of rules adopted by the ARC in December 2003 that govern all exterior improvements and provide standards for the Design Review Process. These guidelines supplement the CC&Rs.

Declarant

The original developer that built the subdivision. In this case, the Declarant still controlled the association’s Board of Directors and the ARC.

Jurisdiction

The legal authority of a court or agency to hear and decide a case. The petition was dismissed because the Department was found to lack jurisdiction over disputes solely between homeowners.

Office of Administrative Hearings

An independent state agency in Arizona where evidentiary hearings, like the one in this case, are conducted by an Administrative Law Judge.

Party Wall

As defined in the CC&Rs, a wall on the property line between contiguous lots. Owners have equal rights to use it and share joint financial responsibility for its repair and maintenance.

Petitioners

The party that initiates a legal action or petition. In this case, homeowners David and Brenda Norman.

Preponderance of the Evidence

The standard of proof required in this civil administrative hearing. It means the evidence presented must be sufficient to convince the judge that a claim is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Rancho Del Lago Community Association.

Restrictive Covenant

A provision in a deed or community document (like a CC&R) that limits the use of the property. Arizona law holds that unambiguous restrictive covenants are enforced to give effect to the intent of the parties.

The Six-Inch Wall That Ignited a Legal Battle: 4 Shocking Lessons from a Brutal HOA War

1.0 Introduction: The Neighbor Next Door

Living next to someone is a universal experience, and it’s remarkable how quickly a small disagreement over a fence or a property line can spiral into a full-blown conflict. For two families in an Arizona HOA, what started as a plan for a backyard wall ended in a formal administrative law hearing, providing a stark case study in property law, association rules, and human nature.

This dispute, involving homeowners David and Brenda Norman and their neighbors, the Hendersons, dissects four critical lessons that challenge common assumptions about homeowner rights and association duties. Their story is a powerful cautionary tale about property lines, HOA authority, and the high cost of a neighborhood war.

2.0 Takeaway 1: The Six-Inch Difference That Changes Everything

1. A Wall on the Property Line Isn’t the Same as a Wall Near It

In property law, inches are everything. The community’s Covenants, Conditions, and Restrictions (CC&Rs) defined a “Party Wall” as a structure sitting directly on the property line between two lots. By this definition, these walls are a shared responsibility, requiring mutual consent from both homeowners for construction and shared costs for maintenance.

This distinction became the pivot on which the entire case turned. Initially, the Hendersons submitted plans to build a shared Party Wall, and the Normans gave their required consent. But then the plan changed. The Hendersons withdrew that request and submitted a new one: to build a wall located just six inches inside their own property line. The record doesn’t state definitively why the Hendersons changed their plan, though testimony suggested the Normans may have rescinded their initial consent.

This was a masterstroke of procedural navigation; by sacrificing a mere six inches of their yard, the Hendersons effectively bought the legal right to build without their neighbors’ consent, turning a potential year-long dispute into a matter of a simple ARC approval. By moving the structure entirely onto their own lot, it was no longer a “Party Wall” but their private property. While the Hendersons had successfully navigated the HOA’s rules, the Normans’ next step was to try and force the HOA to intervene directly—a move that would expose a common misunderstanding about the limits of an association’s power.

3.0 Takeaway 2: Your HOA Isn’t the Neighborhood Referee

2. The HOA’s Power to Intervene Has Surprising Limits

A common assumption among homeowners is that the HOA must mediate any and all disputes between residents. This case proves that assumption is fundamentally incorrect.

When the conflict escalated, the HOA’s position was unwavering. Spencer Brod, an employee of the association’s management company, testified that the association “never gets involved in disputes between neighbors.” Its role is to enforce community rules as they relate to the association, not to take sides in personal conflicts between homeowners.

The Administrative Law Judge presiding over the case reinforced this legal reality, citing Arizona law to clarify the limits of both the HOA’s and the state’s jurisdiction. The judge’s finding was unequivocal:

Neither the CC&Rs nor the Common Project Guidelines require Respondent [the HOA] to mediate or resolve a dispute between neighbors by taking one side or the other. A.R.S. § 32-2199.01(A)(1) provides that ‘[t]he department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.’

This finding is a crucial lesson: while an HOA enforces its governing documents, it is not a neighborhood court and cannot be compelled to referee personal disagreements.

4.0 Takeaway 3: You Can’t Demand a Neighbor Play by the Rules If You Don’t

3. Coming to the Table with Clean Hands Matters

The case contained a powerful element of irony that proved fatal to the Normans’ petition. The judge’s official Findings of Fact reveal that while demanding the HOA enforce its rules against the Hendersons, the Normans had a significant compliance issue of their own.

In September 2017, the Normans submitted a request to build an 11-foot wide concrete driveway “to provide a solid walking surface because Mrs. Norman was disabled and had difficulty walking.” While the motivation was sympathetic, the Architectural Review Committee (ARC) denied the request. Despite the denial, the Normans built the driveway anyway and were subsequently issued a Notice of Violation by the HOA.

Critically, the Normans’ own rule-breaking occurred after the Hendersons’ wall was approved. In the very midst of their dispute, while formulating a case against their neighbors, they chose to defy the ARC themselves. This is a classic illustration of the “unclean hands” doctrine. In any legal or administrative forum, one’s credibility is paramount. The Normans were asking the HOA to be a strict enforcer of rules they themselves had flagrantly violated, a position that is almost always untenable.

5.0 Takeaway 4: When a Judge Calls It a “Spite Fence”

4. The Court May Look Past the Rules and See Your Intent

Even in a hearing focused on the technicalities of CC&Rs, the underlying human motivations of the conflict did not go unnoticed. The HOA’s ARC had previously approved a plan for the Normans to build their own wall, provided it was located three feet inside their property line. They refused. Brenda Norman testified that their contractor told them they were “crazy to give up the 3’ of property.” Mrs. Norman also argued that a wall on her property would be denied as a prohibited “closely parallel wall,” but this claim was directly contradicted by the ARC’s own actions—they had already approved her wall at the three-foot distance.

The judge’s “spite fence” comment wasn’t just an observation; it was the legal culmination of the Normans’ entire pattern of behavior. Their refusal to accept an approved wall on their own property (losing 3 feet) while demanding their neighbor tear down a wall built on theirs (losing 0 feet) painted a clear picture of animosity, not a genuine need for property protection. The judge saw through the legal arguments to the core of the issue:

The wall that Petitioners testified that they must build to protect their property appears to be an archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.

A “spite fence” is a legal term for a structure erected with malicious intent, where the primary purpose is not to improve one’s own property but to annoy, inconvenience, or harm a neighbor. The judge’s use of this term was a powerful signal that, in the court’s view, the dispute was no longer about property rights, but about personal animus.

6.0 Conclusion: A Wall Is a Wall, But a Neighbor Is Forever

This case is a cautionary tale written in concrete and legal filings. It shows how a dispute over six inches of soil can metastasize, fueled by a misunderstanding of HOA rules and an unwillingness to compromise, ultimately costing both parties time, money, and peace of mind. From the critical importance of a few inches of land to the defined limits of an HOA’s authority, the details matter.

Ultimately, the story of the Normans and the Hendersons serves as a powerful reminder that navigating HOA living requires a clear-eyed understanding of the actual rules, not just a sense of what seems “fair.” It leaves us with a critical question to consider.

When it comes to our homes and neighbors, is it more important to be right, or to find a way to live in peace?

Case Participants

Petitioner Side

David Norman (petitioner)
Appeared telephonically on own behalf
Brenda Norman (petitioner)
Testified on Petitioners' behalf

Respondent Side

Ashley N. Moscarello (HOA attorney)
Goodman Law Group
Represented Rancho Del Lago Community Association
Spencer Brod (property manager/witness)
Management Solutions
Employee of Respondent's management company; testified

Neutral Parties

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

Other Participants

Anthony Henderson (homeowner/neighbor)
Next-door neighbor who built the wall in dispute
Mabel Gummere (property manager predecessor)
Predecessor to Spencer Brod

John W. Gray vs. Mesa Coronado III Condominium Association

Posted on November 30, 2018 by [email protected]

Case Summary

Case ID	19F-H1918004-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-11-30
Administrative Law Judge	Kay Abramsohn
Outcome	The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John W. Gray	Counsel	—
Respondent	Mesa Coronado III Condominium Association	Counsel	Austin Baillio, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Petitioner was deemed the prevailing party regarding the Respondent's violations of the CC&Rs and rules concerning parking enforcement. The Respondent was ordered to refund the Petitioner's $500.00 filing fee.

Key Issues & Findings

Failure to enforce parking rules (vehicle limits, garage use, inoperable vehicles)

Petitioner alleged that the HOA refused to enforce parking rules regarding vehicle limits, requiring use of garages for first cars, and banning inoperable or commercial vehicles, despite written complaints. The ALJ found the HOA failed to enforce these rules or issue proper notices/fines.

Orders: MCIII ordered to pay Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1258
MCIII Rules and Regulations #2 and #3
MCIII CC&Rs 4.12
MCIII CC&Rs 4.13
MCIII CC&Rs 4.14

Analytics Highlights

Topics: HOA Enforcement, Parking Rules, Filing Fee Refund, Inoperable Vehicle, CC&R Violation

Additional Citations:

A.R.S. § 33-1258
A.R.S. § 32-2199(1)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

19F-H1918004-REL Decision – 674057.pdf

Uploaded 2026-04-24T11:15:17 (139.6 KB)

19F-H1918004-REL Decision – 674057.pdf

Uploaded 2026-01-23T17:25:52 (139.6 KB)

Briefing Document: Gray v. Mesa Coronado III Condominium Association (Case No. 19F-H1918004-REL)

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in the case of John W. Gray (Petitioner) versus the Mesa Coronado III Condominium Association (MCIII, Respondent). The central issue was MCIII’s failure to enforce its own Covenants, Conditions, and Restrictions (CC&Rs) and community rules regarding vehicle parking.

The Petitioner, Mr. Gray, presented credible and convincing evidence of widespread, ongoing parking violations by multiple residents, including exceeding vehicle limits, failing to use garages for primary parking, and the long-term storage of an inoperable vehicle in a common area parking space. The Respondent, MCIII, argued that the rules were difficult to enforce and that it had taken some action, including revising the rules shortly before the hearing.

The Administrative Law Judge (ALJ) ultimately rejected MCIII’s defense, concluding that the association had demonstrably failed to enforce its governing documents. The ALJ found that MCIII had viable enforcement options, such as issuing notices and fines, which it did not utilize. The final order deemed the Petitioner the prevailing party and required MCIII to reimburse his $500 filing fee.

Case Overview

• Parties Involved:

◦ Petitioner: John W. Gray, owner of Unit 122 in the Mesa Coronado III Condominium development.

◦ Respondent: Mesa Coronado III Condominium Association (MCIII), the unit owners’ association for the 33-unit development.

• Adjudicating Body: The Office of Administrative Hearings, following a referral from the Arizona Department of Real Estate.

• Hearing Date: October 29, 2018.

• Decision Date: November 30, 2018.

• Core Allegation: The Petitioner alleged that MCIII violated its own Rules, Regulations, and CC&Rs (specifically Articles 4.12, 4.13, and 4.14) by refusing to enforce parking rules despite receiving written complaints.

Background and Timeline of the Dispute

The conflict centered on parking within the MCIII development, which has 36 parking spaces for 33 units, with spaces being “open” and not assigned to specific units (with one exception).

• Pre-existing Rules (Adopted Jan. 2002):

◦ Owners were limited to two cars per unit.

◦ The garage was considered the “assigned” parking for the first car.

◦ Inoperable vehicles were banned from the property.

◦ A system of warnings and fines was in place for rule violations.

• May 17, 2018: Petitioner Gray submitted a formal written complaint to MCIII, identifying at least eight units in violation of parking rules. His complaint specified:

◦ Units with three cars were not using their garages for parking, instead using them for storage.

◦ An inoperable red truck had been stationary in the same parking spot for over a year.

◦ A commercial truck was present containing what he believed to be hazardous pool chemicals.

• MCIII’s Initial Response: The association acknowledged a “history” with the parking situation and stated the Board would review the rules for revision. MCIII noted it would investigate the red truck and also accused the Petitioner of regularly parking his own truck in a fire lane.

• July 16, 2018: The Petitioner sent a follow-up notification regarding the continuing violations.

• MCIII’s Second Response: The association informed the Petitioner that the issue would be on the agenda for the July 24, 2018 Board meeting and again reminded him of his own alleged fire lane parking violations.

• July 23, 2018: MCIII sent a notice to the owner of the unit associated with the inoperable red truck, informing them of the rules violation.

• July 30, 2018: The Petitioner filed his formal petition with the Arizona Department of Real Estate.

• October 23, 2018: Days before the hearing, the MCIII Board adopted new parking rules.

Petitioner’s Case and Evidence (John W. Gray)

The Petitioner built a detailed case demonstrating a pattern of non-enforcement by MCIII. The ALJ found his evidence to be “credible and convincing.”

• Specific Violations Alleged:

◦ Excess Vehicles: Multiple units possessed more than the two-vehicle limit.

◦ Garage Misuse: Residents with multiple cars were using common area parking spaces while their garages were used for storage.

◦ Inoperable Vehicle: A red truck remained parked and inoperable in one space for over a year, in direct violation of CC&R 4.14.

• Evidence Presented at Hearing:

◦ Photographs: A series of exhibits (6 through 16) contained photographs documenting the various offending vehicles.

◦ Private Investigation: The Petitioner hired a private investigator to obtain vehicle registration information to link specific vehicles to their owners and units (Exhibit 17).

◦ Quantitative Analysis: The Petitioner calculated that just 12 units were occupying 27 common area parking spaces, leaving very few spaces for the remaining 21 units.

◦ Written Correspondence: Copies of his complaints to MCIII were submitted, demonstrating that the association was put on notice of the violations.

Respondent’s Defense and Actions (MCIII)

The association’s defense centered on the difficulty of enforcement and subsequent actions taken after the Petitioner’s complaint.

• Core Arguments:

◦ Unenforceability: MCIII asserted that it was “almost impossible” to enforce the existing restrictive rules, as it would require constant 24/7 monitoring.

◦ Lack of Prior Complaints: The Respondent claimed it had received no complaints about parking prior to Mr. Gray’s.

◦ Issue is Moot: MCIII argued that its recent revision of the parking rules rendered the Petitioner’s complaint moot.

• Actions Taken by MCIII:

◦ Rule Revision: At the October 23, 2018 Board meeting, MCIII adopted new rules that eliminated the two-car limit but maintained the requirement for residents to use their garage first before occupying common area spaces. The ban on inoperable and commercial vehicles was also kept.

◦ Enforcement Against Petitioner: The Respondent noted that it had previously taken enforcement action by having the Petitioner’s own truck towed for parking in a fire lane.

◦ Notice Regarding Red Truck: MCIII provided evidence that it sent one letter on July 23, 2018, regarding the inoperable red truck.

◦ Towing Contract: The association stated it had recently contracted with Shaffer Towing for towing services.

◦ Community Manager Patrols: The “Community Manager,” Andrea Lacombe, testified that she drove through the property approximately twice a month looking for violations.

Governing Rules and CC&Rs

The decision rested on the specific language of the association’s governing documents in effect at the time of the complaint.

Document

Article/Rule

Provision

Rules & Regulations (Jan 2002)

Rule 3

Limits owners to two cars per unit and “assigns” the garage as parking for the first car.

CC&Rs (Jan 1999)

Art. 4.12

Prohibits the parking of commercial vehicles, RVs, boats, trailers, etc., on any part of the condominium outside of an enclosed garage.

CC&Rs (Jan 1999)

Art. 4.13

States that no parking space may be used for storage or any purpose other than parking of Family Vehicles. Grants the Board the right to assign spaces.

CC&Rs (Jan 1999)

Art. 4.14

Prohibits the storage of inoperable vehicles on any portion of the condominium other than within enclosed garages. Grants the Board the right to have violating vehicles towed.

Administrative Law Judge’s Decision and Rationale

The ALJ sided with the Petitioner, finding that MCIII had failed in its duty to enforce its own rules.

• Rejection of MCIII’s Defense: The ALJ determined that MCIII’s argument that the rules were unenforceable was “not a viable defense.” The decision explicitly stated that the association could have used provisions for notification and fines to enforce the rules but failed to do so.

• Evidence of Non-Enforcement: The hearing record demonstrated a clear failure by MCIII to act.

◦ The evidence was “undisputed” that the inoperable red truck had been in violation for over a year, yet MCIII only sent a single notice long after the complaint was filed.

◦ The ALJ noted that clearing even that one space would have improved the “tenuous parking situation.”

◦ The record contained no indication that MCIII had ever enforced the rules regarding the number of vehicles or the mandatory use of garages for primary parking.

◦ The only enforcement action cited, other than the single letter, was the towing of the Petitioner’s own vehicle.

• Conclusion of Law: Based on the evidence, the ALJ concluded that “MCIII failed to enforce CC&Rs and rules and regulations regarding parking.” The revision of the rules just before the hearing did not negate the past failure to enforce the rules that were in effect at the time of the Petitioner’s complaint.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a binding order with two key provisions:

1. Prevailing Party: The Petitioner, John W. Gray, is officially deemed the prevailing party in the matter.

2. Reimbursement: MCIII is ordered to pay the Petitioner his filing fee of $500.00 within thirty (30) days of the order.

Study Guide: Gray v. Mesa Coronado III Condominium Association

This guide provides a detailed review of the Administrative Law Judge Decision in case No. 19F-H1918004-REL, concerning a dispute over the enforcement of parking regulations. It includes a short-answer quiz, an answer key, essay questions for deeper analysis, and a glossary of key terms.

Quiz: Short-Answer Questions

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

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

2. What were the two main issues John W. Gray alleged in his petition filed with the Department on July 30, 2018?

3. According to the MCIII rules in effect at the time of the complaint, what were the primary restrictions placed on vehicle ownership and parking for residents?

4. Describe the key evidence the Petitioner presented at the hearing to substantiate his claims of widespread parking rule violations.

5. What was the Respondent’s primary defense for not enforcing the more restrictive parking rules that were in place at the time of the complaint?

6. How did the new rules, adopted on October 23, 2018, change the association’s approach to vehicle limits and garage use?

7. Explain the significance of the inoperable red truck to the Administrative Law Judge’s final decision.

8. What was the required standard of proof for the Petitioner in this case, and did the judge determine that he met it?

9. Prior to the hearing, what specific enforcement actions did MCIII take in response to the Petitioner’s documented complaints?

10. What was the final order issued by the Administrative Law Judge, and what was MCIII required to do?

Answer Key

1. The primary parties were John W. Gray, the Petitioner, who was a condominium owner in the MCIII development, and the Mesa Coronado III Condominium Association (MCIII), the Respondent and the governing unit owners’ association for the development. Mr. Gray initiated the legal action against the association for allegedly failing to enforce its rules.

2. The Petitioner’s two main allegations were that the association had failed to provide him with a copy of its management company agreement and that it refused to enforce its parking rules. He specifically alleged multiple units were violating rules regarding the number of vehicles and the presence of inoperable vehicles.

3. The rules in effect at the time of the complaint limited owners to a maximum of two cars per unit. The rules also “assigned” the garage as the designated parking spot for the first car and explicitly banned “inoperable” vehicles from the property.

4. The Petitioner presented credible evidence including photographs from multiple exhibits (6-16) showing numerous violations. He also testified based on his personal observations, identified specific units with three cars using garages for storage, and provided vehicle registration information obtained through a private investigator.

5. The Respondent defended its lack of enforcement by arguing that the existing restrictive rules were “almost impossible” to enforce without constant surveillance. The Community Manager also testified that she had received no prior complaints about parking from other residents.

6. The new rules, adopted October 23, 2018, removed the limit on the number of cars permitted per unit. However, they instituted a new requirement that owners must park their vehicles in their respective garages before using any common area parking spaces.

7. The inoperable red truck was significant because it had been parked in the same spot for over a year, serving as undisputed evidence of a long-standing violation. The judge noted that MCIII’s single letter to the owner, sent long after the violation began, demonstrated a clear failure to enforce its rules regarding inoperable vehicles.

8. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that his contentions were more probably true than not. The judge concluded that the Petitioner successfully met this burden of proof.

9. MCIII’s primary enforcement actions were to place the issue on its July 24, 2018, Board meeting agenda and to send one letter on July 23, 2018, to the owner of the unit associated with the inoperable red truck. The record also shows MCIII had previously enforced parking rules against the Petitioner himself by having his truck towed from a fire lane.

10. The judge ordered that the Petitioner be deemed the prevailing party in the case. The judge further ordered that MCIII must pay the Petitioner his filing fee of $500.00 within thirty days of the order.

Essay Questions

The following questions are designed to promote deeper analysis of the case. Formulate comprehensive responses based on the facts and arguments presented in the source document.

1. Analyze the Respondent’s argument that revising the parking rules made the Petitioner’s complaints “moot.” Based on the judge’s decision, evaluate the strength of this defense and explain why it was ultimately unsuccessful.

2. Discuss the concept of a condominium association’s duty to enforce its own rules and CC&Rs, using the specific examples of MCIII’s actions (and inactions) from the case. How did the association’s selective enforcement—such as towing the Petitioner’s vehicle but not others—factor into the case’s context?

3. Evaluate the evidence presented by both the Petitioner and the Respondent. Which party presented a more compelling case, and why? Support your analysis by citing specific exhibits, testimony, and documented observations mentioned in the decision.

4. Explore the timeline of events from the Petitioner’s first complaint in May 2018 to the judge’s decision in November 2018. How does this timeline illustrate the dispute’s escalation and the association’s response strategy?

5. The Administrative Law Judge found that MCIII’s argument of the rules being “unenforceable” was not a viable defense. What practical enforcement actions, short of 24/7 surveillance, could the association have taken according to the information provided in the hearing record?

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision. In this case, it was Kay Abramsohn.

Burden of Proof

The legal obligation of a party in a trial to produce evidence that proves the claims they have made against the other party.

Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the guidelines for a planned community like a condominium. MCIII’s CC&Rs were effective January 12, 1999.

Common Elements

Also referred to as the “Common Area,” these are parts of the condominium property, such as the parking lot, available for use by all unit owners.

Community Manager

An employee of the management company (Curtiss Management) hired by the association to handle its affairs. In this case, the manager was Andrea Lacombe.

Evidentiary Hearing

A formal legal proceeding where parties present evidence (exhibits) and testimony to prove their case before a judge or hearing officer.

Inoperable Vehicle

A vehicle that cannot be operated. Both the old and new MCIII rules, as well as CC&R 4.14, prohibited storing such vehicles on the property outside of an enclosed garage.

A term used to describe an issue that is no longer in dispute or of practical significance. MCIII argued that its new rules made the Petitioner’s issues moot.

Petitioner

The party who initiates a legal action or files a petition. In this case, John W. Gray.

A map, drawn to scale, showing the divisions of a piece of land. The plat for MCIII showed there were 36 parking spaces in the lot.

Preponderance of the Evidence

The standard of proof required in this case. It is met if the proposition is more likely to be true than not true; it is a superior evidentiary weight that inclines an impartial mind to one side.

Prevailing Party

The party who is found to have won the legal case. The judge deemed the Petitioner to be the prevailing party.

Respondent

The party against whom a petition is filed; the defending party. In this case, the Mesa Coronado III Condominium Association.

He Fought the HOA Over Parking—and Won. Here Are the 5 Surprising Lessons from His Battle.

Introduction: The Familiar Frustration of HOA Parking

For anyone living in a condo, townhome, or planned community, the daily dance of parking is a familiar routine. It’s a world of limited spaces, confusing rules about guest parking, and the constant fear of a warning sticker or, worse, a tow truck. This shared frustration often simmers just below the surface of community life, where the rules established by a Homeowners Association (HOA) can feel arbitrary and inconsistently applied.

This post breaks down a real-life administrative court case where one resident, John W. Gray, took on his Condominium Association for its complete failure to enforce its own parking rules. Without getting lost in legal jargon, we will explore how a single, determined individual was able to hold his HOA accountable. This wasn’t just a simple disagreement; it was a formal challenge that went before a judge.

The official court decision in Gray’s favor offers powerful and surprising lessons for any homeowner, renter, or board member. This David vs. Goliath story is more than just a victory for one resident; it’s a practical guide filled with takeaways on how to effectively address community disputes and understand the true responsibilities of an HOA.

1. The ‘It’s Too Hard to Enforce’ Excuse Doesn’t Work

The association (MCIII) built its primary defense on the argument that its own parking rules were “almost impossible” to enforce. They claimed that the two-car limit per unit was too restrictive and would require constant, 24/7 monitoring and picture-taking, which was simply not feasible.

The administrative law judge completely rejected this excuse. The core lesson from the ruling is that an HOA cannot simply choose to ignore its governing documents because enforcement is inconvenient. The judge pointed out that the association had simpler tools at its disposal, such as issuing violation notices and levying fines as outlined in their rules, but failed to take even these basic steps.

The judge’s finding offers a powerful reality check for any board that feels overwhelmed by its own regulations:

MCIII’s argument that the rules were unenforceable is not a viable defense in this instance, as the rules contained many provisions that could have been noticed to the units regarding parking rules and their enforcement.

2. Meticulous Data is Your Strongest Weapon

John W. Gray didn’t just complain; he built an airtight case. His methodical approach to proving the association’s failure was a key factor in his success. The court record details the specific actions he took:

• He conducted personal observations and took photographs of the offending vehicles.

• He identified the specific units that had too many cars and were using their garages for storage instead of parking.

• He hired a private investigator to obtain vehicle registration information to definitively link cars to specific units.

The judge found this evidence to be “credible and convincing.” Gray’s detailed documentation painted a clear picture of the problem’s scale. According to his calculations, just 12 of the community’s 33 units were monopolizing 27 parking spaces, leaving very few for the remaining 21 units. This takeaway is clear: a well-documented, fact-based complaint is infinitely more powerful than anecdotal grievances.

3. Changing the Rules Doesn’t Erase Past Failures

In response to Gray’s formal complaint, the HOA Board took a strategic but ultimately unsuccessful step. Just days before the scheduled hearing, the Board reviewed and adopted a new set of parking rules. These new rules conveniently removed the two-car limit that the association had claimed was unenforceable.

The association then argued that this rule change made the petitioner’s original complaint “moot,” or irrelevant. They essentially claimed that since the rule he was complaining about no longer existed, there was no longer a case to be heard.

This strategy failed because the judge ruled on the HOA’s past failure to enforce the rules that were in effect at the time of the complaint. This is a crucial lesson in accountability. An organization cannot escape responsibility for its prior negligence simply by changing the rules at the last minute. The failure to act had already occurred, and the consequences of that failure were the basis of the lawsuit.

4. Ignoring Small Violations Can Create a Major Crisis

Nowhere was the HOA’s failure more obvious than in the case of a single inoperable red truck. The vehicle had been parked in the same spot for over a year, in clear violation of the rules prohibiting the storage of inoperable vehicles on the property.

Despite this long-term, visible violation, the hearing record shows the HOA’s response was both delayed and minimal. They sent only one letter to the unit owner about the truck, and this action was taken “long after” the violation began and only after Gray had formally complained.

The judge’s observation on this single vehicle underscores the wider impact of the board’s inaction:

Even the clearing of just one more space would have made the tenuous parking situation better.

The red truck was a symptom of a much larger disease. The failure to address one obvious, easily-proven violation demonstrated a systemic failure to manage the community’s shared resources, which directly contributed to the parking crisis and the disproportionate use of spaces by a few residents.

5. Enforcement Must Be Fair, Not Just Convenient

Perhaps the most telling detail from the hearing record was the apparent double standard in the HOA’s enforcement actions. The record explicitly mentions only two enforcement actions the association had taken regarding parking:

• Towing the petitioner’s own truck on one occasion for parking in a fire lane.

• Sending a single, very late letter about the red truck that had been parked for over a year.

The hearing record is devastatingly clear on this point. The only enforcement actions the board could point to were punitive or reactive: towing the truck of the very resident demanding action, and sending a single, belated letter about a year-old violation after he had filed a formal complaint. This wasn’t just inconsistent enforcement; it was a textbook case of selective enforcement that targeted the complainant while ignoring the systemic problem.

For an HOA’s authority to be respected and legally defensible, its rules must be applied fairly and consistently to all residents, not just when it is convenient or aimed at a perceived nuisance.

Conclusion: A Win for the Power of One

The judge’s order was a decisive victory for resident rights, affirming that an HOA’s duty to enforce its own rules is not optional. While the association was ordered to repay his $500 filing fee, the real prize was the validation that one resident, armed with credible evidence, can successfully hold a board accountable to the entire community. This case proves that meticulous documentation, persistence, and a refusal to be ignored are the great equalizers in community governance. It makes you wonder: what ‘unenforceable’ rules in your community are just waiting for a champion to demand they be followed?

Case Participants

Petitioner Side

John W. Gray (petitioner)
Appeared on his own behalf

Respondent Side

Austin Baillio (attorney)
Maxwell & Morgan PC
Represented Mesa Coronado III Condominium Association
Andrea Lacombe (community manager)
Curtiss Management
Testified for Respondent

Neutral Parties

Kay Abramsohn (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Felicia Del Sol (administrative staff)
Transmitted decision electronically