Clifford (Norm) Burnes v. Saguaro Crest Homeowners Association, Inc.

Posted on July 28, 2021 by [email protected]

Case Summary

Case ID	21F-H2121051-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2022-01-03
Administrative Law Judge	Thomas Shedden
Outcome	none
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Clifford (Norm) Burnes	Counsel	—
Respondent	Saguaro Crest Homeowners Association, Inc.	Counsel	John Crotty

Alleged Violations

ARIZ. REV STAT. 33-1804

Outcome Summary

The ALJ dismissed the Petitioner's complaint, finding that the Respondent HOA did not violate the open meeting law (A.R.S. § 33-1804) because the action was taken without a meeting via unanimous written consent as authorized by A.R.S. § 10-3821.

Why this result: The Petitioner did not meet the burden of proof to show that the alleged violation occurred, as the board acted without holding a formal meeting.

Key Issues & Findings

Violation of open meeting law by taking action via unanimous written consent

Petitioner alleged that the Board of Directors violated the open meeting law (A.R.S. § 33-1804) on May 3, 2020, by taking two actions using unanimous written consent of the Board members, which the Respondent claimed was permissible under A.R.S. § 10-3821 as action without a meeting.

Orders: Petitioner's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV STAT. 33-1804
ARIZ. REV STAT. 10-3821

Analytics Highlights

Topics: HOA, Open Meeting Law, Unanimous Written Consent, Rehearing, Planned Community

Additional Citations:

ARIZ. REV STAT. 33-1804
ARIZ. REV STAT. 10-3821
ARIZ. REV. STAT. 32-2199
ARIZ. REV. STAT. 32-2199.02(A)
ARIZ. REV. STAT. 41-1092.08
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. 10-3701(F)
ARIZ. REV. STAT. 10-3071

Video Overview

Audio Overview

Decision Documents

21F-H2121051-REL Decision – 930803.pdf

Uploaded 2026-04-25T10:08:04 (46.9 KB)

21F-H2121051-REL Decision – 935756.pdf

Uploaded 2026-04-25T10:08:09 (124.8 KB)

21F-H2121051-REL Decision – 899423.pdf

Uploaded 2026-04-25T10:08:15 (101.7 KB)

21F-H2121051-REL Decision – 930803.pdf

Uploaded 2026-04-24T11:35:49 (46.9 KB)

21F-H2121051-REL Decision – 935756.pdf

Uploaded 2026-04-24T11:35:52 (124.8 KB)

21F-H2121051-REL Decision – 899423.pdf

Uploaded 2026-04-24T11:35:56 (101.7 KB)

Briefing Document: Burnes v. Saguaro Crest Homeowners Association

Executive Summary

This briefing document synthesizes the legal proceedings and final decision in the case of Clifford (Norm) Burnes versus the Saguaro Crest Homeowners Association, Inc. (Case No. 21F-H2121051-REL). The core of the dispute was Petitioner Burnes’s allegation that the HOA Board of Directors violated Arizona’s open meeting law for planned communities by taking two official actions on May 3, 2020, without holding a public meeting. The HOA defended its actions, stating that it utilized a provision in the Arizona statutes for non-profit corporations (ARIZ. REV. STAT. § 10-3821) that allows a board to take action “without a meeting” through the unanimous written consent of all directors.

The Administrative Law Judge (ALJ), Thomas Shedden, ultimately ruled in favor of the HOA. The key finding was that no “meeting” as defined by the open meeting law actually occurred on May 3, 2020. Instead, the Board President individually visited other board members to obtain signatures on consent forms. The ALJ concluded that the two relevant statutes—the open meeting law (§ 33-1803/1804) and the action-by-consent statute (§ 10-3821)—are not in conflict. An HOA board can legally use the action-by-consent procedure, but if it chooses to hold a meeting, it must comply with the open meeting law.

Mr. Burnes’s request for a rehearing, which raised several legal and jurisdictional arguments, was granted but ultimately denied on its merits. The ALJ systematically rejected each of Burnes’s arguments, reaffirming the original decision. The final order dismissed Mr. Burnes’s petition, making the HOA the prevailing party.

——————————————————————————–

Case Overview

• Petitioner: Clifford (Norm) Burnes

• Respondent: Saguaro Crest Homeowners Association, Inc.

• Case Number: 21F-H2121051-REL (and 21F-H2121051-REL-RHG for rehearing)

• Adjudicating Body: Arizona Office of Administrative Hearings

• Administrative Law Judge: Thomas Shedden

• Core Allegation: The Petitioner alleged that on May 3, 2020, the Respondent’s Board of Directors violated Arizona’s open meeting law (cited as ARIZ. REV STAT. § 33-1803 in the initial decision and § 33-1804 in the rehearing decision) by taking two formal actions via unanimous written consent without allowing members to attend and speak.

• Respondent’s Defense: The Respondent acknowledged taking action by unanimous consent but asserted this was permissible under ARIZ. REV. STAT. § 10-3821, which allows for action without a meeting. Therefore, the open meeting law did not apply.

Factual Background and Timeline

1. April 2020: Mr. Burnes and his wife raised two issues with the HOA Board concerning “lot 7,” which is adjacent to their property. The issues were related to a construction bond waiver and the placement of a house on the lot.

2. April 2020 (Post-Complaint): Following the complaint, research was conducted by Jamie Argueta, and emails were exchanged between Mr. Burnes, the Board members, and Mr. Argueta.

3. April 19 & 21, 2020: The Board members met with Mr. and Ms. Burnes to discuss the issues. Minutes were kept for these meetings.

4. Undated Discussions: Board President Esmerelda Sarina Martinez and Board member Mr. Madill had informal discussions with other HOA members, which Ms. Martinez characterized as “neighbors talking and not a meeting.”

5. May 3, 2020: Ms. Martinez, acting alone, drafted two unanimous consent forms. She personally brought the forms and related documents to the homes of the other Board members, who each read the information and signed. The two actions taken by consent were:

◦ Honoring a waiver of the construction deposit for lot 7.

◦ A decision regarding the placement of the home on lot 7.

6. August 29, 2020: The first regularly scheduled Board meeting after the May 3rd actions was held. The meeting minutes did not include an entry showing that the written consent documents had been filed with the corporate records, a requirement of § 10-3281(A).

Procedural History

• May 7, 2021: Mr. Burnes filed his petition with the Arizona Department of Real Estate, initially asserting seven violations but being required to select only one for adjudication due to paying a single fee. He selected the violation of members not being permitted to attend and speak before the Board took formal action on May 3, 2020.

• July 16, 2021: An initial hearing was held before ALJ Thomas Shedden.

• July 28, 2021: The ALJ issued a decision dismissing Mr. Burnes’s petition, finding he had not proven a violation because no meeting occurred on May 3, 2020.

• September 2, 2021 (approx.): Mr. Burnes filed a Rehearing Request.

• September 22, 2021: The Department of Real Estate granted the request for a rehearing.

• December 9, 2021: The ALJ issued an order concluding the rehearing matter, noting that since only legal issues were raised, the decision would be based on the existing record and supplemental briefs (though neither party filed one).

• January 3, 2022: The ALJ issued the final decision on the rehearing, once again dismissing the petition and upholding the original ruling. This order was final and binding, subject to judicial review in the Superior Court.

Analysis of Legal Arguments from Rehearing

In his request for a rehearing, Mr. Burnes raised six primary legal arguments against the initial decision. The ALJ addressed and rejected each one.

Petitioner’s Argument

ALJ’s Analysis and Conclusion

1. Limited Jurisdiction: The ALJ’s jurisdiction is limited to Title 33, Chapter 16 and does not include ARIZ. REV. STAT. § 10-3821.

Rejected. Jurisdiction was proper because Mr. Burnes alleged a violation of § 33-1804 (which is in Title 33, Ch. 16). Nothing prohibits a Respondent from raising defenses from outside Title 33, or the ALJ from considering them.

2. Inapplicability of § 10-3821: The statute for action-by-consent only applies to actions found in Title 10, Chapters 24-40. The actions the HOA took are not found there.

Rejected. The ALJ noted that Mr. Burnes himself acknowledged that “voting” is an action found within those chapters of Title 10, and voting is precisely the action that was taken by unanimous consent.

3. Conflict of Law (§ 10-3701(F)): Statute § 10-3701(F) states that in cases of inconsistency, Title 33 (planned communities) controls over Title 10.

Rejected. This analysis is flawed because § 10-3701(F) applies specifically to membership meetings (Title 10, Ch. 30). The statute for action by consent, § 10-3821, deals with directors’ meetings and is in a different chapter (Title 10, Ch. 31), which has no similar provision. The legislature’s choice to include this provision for membership meetings but not for board meetings indicates an intent to allow boards more latitude to act by consent.

4. Specific vs. General Statute: § 33-1804 is specific to planned communities and should control over § 10-3821, which applies to all non-profits. The policy of the state favors open meetings.

Rejected. This principle of statutory construction only applies when statutes are in conflict and cannot both be given effect. Here, they are not in conflict. Both can be given full effect: an HOA may take action without a meeting per § 10-3821, but if a meeting is held, it must follow the open meeting requirements of § 33-1804.

5. Bylaws Are Irrelevant: The ALJ wrongly cited the HOA’s bylaws allowing action-by-consent, because § 33-1804 applies “notwithstanding any provision in the… bylaws.”

Rejected. Mr. Burnes was correct that bylaws do not trump the open meeting law. However, he overlooked that § 10-3821 itself contains an exception: it does not apply if the corporation’s bylaws prohibit action by consent. The finding regarding the bylaws was necessary only to show that this exception did not apply to the HOA, thus making § 10-3821 available to them.

6. A Meeting Did Occur: Mr. Burnes asserted a meeting did take place on May 3, 2020.

Rejected. The ALJ found this position had several flaws: Mr. Burnes cited no evidence from the record to prove discussion occurred on May 3rd; he conflated prior meetings with the events of May 3rd; and he provided no legal authority to show that drawing on past discussions to draft a consent form constitutes a “meeting.” The ALJ also dismissed his reliance on new dictionary definitions not presented at the original hearing.

Key Statutes and Legal Principles

• ARIZ. REV. STAT. § 33-1803 / § 33-1804 (Open Meetings Law):

◦ Mandates that “all meetings of the members’ association and the board of directors… are open to all members of the association.”

◦ Members “shall be permitted to attend and speak at an appropriate time during the deliberations and proceedings.”

◦ A “quorum of the board of directors that meets informally to discuss association business… shall comply with the open meeting and notice provisions.”

◦ Reflects a state policy that provisions should be construed “in favor of open meetings.”

• ARIZ. REV. STAT. § 10-3821 (Action Without Meeting):

◦ “Unless the articles of incorporation or bylaws provide otherwise, action… to be taken at a directors’ meeting may be taken without a meeting if the action is taken by all of the directors.”

◦ The action must be evidenced by one or more written consents, signed by each director, and included in the minutes filed with corporate records.

◦ A consent signed under this section has “the effect of a meeting vote.”

• Saguaro Crest HOA Bylaws (Section 3.5):

◦ The association’s bylaws explicitly provide directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”

Conclusion and Final Order

The Administrative Law Judge concluded that Mr. Burnes failed to meet his burden of proof to show that the Saguaro Crest HOA violated the open meeting law. The central finding was that the HOA’s actions on May 3, 2020, did not constitute a “meeting” but were a legally permissible “action without a meeting” under ARIZ. REV. STAT. § 10-3821. The subsequent rehearing confirmed this legal interpretation.

The final order, issued January 3, 2022, was:

“IT IS ORDERED that Petitioner Clifford (Norm) Burnes’s petition is dismissed.”

The order was final and binding, with any further appeal requiring judicial review by the Superior Court within 35 days.

Study Guide: Burnes v. Saguaro Crest Homeowners Association, Inc.

This study guide provides a review of the administrative law case involving Petitioner Clifford (Norm) Burnes and Respondent Saguaro Crest Homeowners Association, Inc. It includes a short-answer quiz, an answer key, essay questions, and a glossary of key terms based on the provided legal decisions.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the information in the case documents.

1. What was the single, specific violation that Clifford (Norm) Burnes alleged against the Saguaro Crest Homeowners Association’s Board of Directors?

2. What was the Respondent’s primary legal justification for the actions its Board of Directors took on May 3, 2020?

3. What two specific decisions did the Board make using the unanimous consent forms on May 3, 2020?

4. According to the Administrative Law Judge (ALJ), how can both the open meeting law (§ 33-1804) and the statute allowing action without a meeting (§ 10-3821) be given effect without being in conflict?

5. What was the purpose of the rehearing granted to Mr. Burnes, and what was the outcome?

6. How did the HOA’s bylaws, specifically section 3.5, support the Respondent’s case?

7. What argument did Mr. Burnes make regarding the ALJ’s jurisdiction to consider ARIZ. REV. STAT. section 10-3821?

8. What is the standard of proof required in this matter, and who bears the burden of meeting it?

9. Mr. Burnes asserted that a meeting did occur on May 3, 2020. What flaws did the ALJ identify in this assertion?

10. What specific requests did Mr. Burnes make in his petition as a remedy for the alleged violation?

——————————————————————————–

Quiz Answer Key

1. Mr. Burnes’s single alleged violation was that at the “meeting” on May 3, 2020, HOA members were not permitted to attend and speak after discussion but before the Board took formal action. This, he claimed, was a violation of Arizona’s open meeting law, cited as ARIZ. REV STAT. § 33-1803 and later § 33-1804.

2. The Respondent acknowledged taking two actions by consent but argued that no meeting actually occurred. Their defense was that they acted under the authority of ARIZ. REV. STAT. § 10-3821, which explicitly allows a board of directors to take action without a meeting if it is done via unanimous written consent of all directors.

3. The two decisions made via unanimous consent related to issues Mr. Burnes had raised about lot 7, which abuts his property. The first action was to honor a waiver of the construction deposit for lot 7, and the second action was regarding the placement of the home on lot 7.

4. The ALJ reasoned that the statutes are not in conflict because they apply to different situations. Respondent may take action without a meeting as allowed by § 10-3821, but if a meeting is held, Respondent must follow all the requirements of the open meeting law, § 33-1804.

5. Mr. Burnes requested a rehearing, alleging that the initial ALJ decision’s findings of fact were not supported by evidence or were contrary to law. The rehearing was granted to review these legal issues, but the outcome was the same: the ALJ once again concluded that no violation had occurred and dismissed Mr. Burnes’s petition.

6. Section 3.5 of the Association’s bylaws, titled “Action Without a Meeting,” explicitly provides the directors with “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.” This directly supported the Respondent’s claim that its actions were permissible under its own governing documents as well as state law.

7. Mr. Burnes argued that the ALJ’s jurisdiction is limited to Title 33, Chapter 16, and therefore the ALJ had no jurisdiction to consider section 10-3821 as a defense because it is not found in that title. The ALJ rejected this, stating that jurisdiction was proper because the complaint was about a violation of Title 33, and nothing prohibits a respondent from raising defenses from outside that title.

8. The standard of proof is a “preponderance of the evidence.” The Petitioner, Mr. Burnes, bore the burden of proof to show that the alleged violation occurred.

9. The ALJ found several flaws in this assertion: Mr. Burnes did not cite evidence from the record proving a discussion occurred on May 3rd, he conflated prior meetings with the events of May 3rd, and he provided no legal authority showing that prior discussions are pertinent to whether a meeting occurred on that specific day.

10. Mr. Burnes requested that the Respondent be ordered to rescind the consent actions, comply with the open meeting law, pay his filing fee, and be assessed a civil penalty.

——————————————————————————–

Essay Questions

1. Analyze the central conflict between ARIZ. REV. STAT. § 33-1804 (“Open meetings”) and ARIZ. REV. STAT. § 10-3821 (“Action without meeting”) as presented in this case. Explain the ALJ’s reasoning for concluding that the statutes do not conflict and can both be given effect.

2. Describe the timeline of events leading up to the May 3, 2020 unanimous written consent. How did the meetings and communications in April 2020 between Mr. Burnes and the Board influence the context of the dispute, even though they were not the subject of the final legal violation claim?

3. Evaluate the six specific legal arguments Mr. Burnes raised in his request for rehearing. For each, summarize his point and the ALJ’s counter-argument or legal conclusion.

4. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Explain why the ALJ concluded that Mr. Burnes failed to meet this standard of proof in both the initial hearing and the rehearing.

5. Examine the relationship between state statutes and an association’s governing documents (like bylaws) in this case. How did the ALJ address Mr. Burnes’s argument that § 33-1804 should apply “notwithstanding any provision in the…bylaws”?

——————————————————————————–

Glossary of Key Terms

Term / Statute

Definition

Action without meeting

A procedure allowed by ARIZ. REV. STAT. § 10-3821 and the Association’s Bylaws (Section 3.5) where a board of directors may take action if it is evidenced by one or more written consents signed by all directors. The consent has the effect of a meeting vote.

Administrative Law Judge (ALJ)

The official, in this case Thomas Shedden, assigned to adjudicate complaints and ensure compliance with relevant statutes for the Office of Administrative Hearings.

ARIZ. REV. STAT. § 10-3821

The state statute titled “Action without meeting” that permits a board of directors to take action without a meeting if all directors provide written consent, unless the articles of incorporation or bylaws provide otherwise.

ARIZ. REV. STAT. § 33-1803 / § 33-1804

The state’s “Open meetings” law for planned communities. It requires that all meetings of an HOA board be open to all members, who shall be permitted to attend and speak at an appropriate time.

Burden of Proof

The obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In this case, the Petitioner (Mr. Burnes) bore the burden of proof.

Clifford (Norm) Burnes

The Petitioner in the case, a member of the Saguaro Crest Homeowners Association.

Petitioner

The party who files a petition or brings an action; in this case, Clifford (Norm) Burnes.

Preponderance of the evidence

The standard of proof in this case, defined as “The greater weight of the evidence…sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party against whom a petition is filed; in this case, Saguaro Crest Homeowners Association, Inc.

Saguaro Crest Homeowners Association, Inc.

The Respondent in the case; a planned community governed by a Board of Directors.

Unanimous Written Consent

The method used by the Respondent’s Board of Directors on May 3, 2020, to take action. It involved each board member signing written consent forms, as permitted by ARIZ. REV. STAT. § 10-3821.

Your HOA Board Can Legally Make Decisions in Secret—Here’s How One Homeowner’s Lawsuit Proved It

1.0 Introduction: The Expectation vs. The Reality

For most homeowners living in a planned community, the principle of transparency is paramount. The common expectation is that all significant decisions made by the Homeowners Association (HOA) board of directors will happen in open meetings. These are forums where members can attend, listen to the deliberations, and, at the appropriate time, make their voices heard before the board takes a formal vote. This commitment to openness is often seen as a cornerstone of fair governance.

But what if a board could make a decision without ever holding a meeting at all? This question was at the heart of a legal dispute in Arizona, where a homeowner named Clifford (Norm) Burnes took his HOA, Saguaro Crest, to court. Mr. Burnes alleged that his board violated the state’s open meeting law when it took action on two separate issues without convening a meeting. The case worked its way through an administrative law court, and the final decision sided with the HOA, establishing a critical legal precedent that boards can, under specific circumstances, bypass open meetings entirely.

2.0 Takeaway 1: Boards Can Legally Act “Without a Meeting”

The central facts of the case were not in dispute. On May 3, 2020, the Saguaro Crest HOA board made two formal decisions concerning a neighboring lot, specifically regarding a construction bond waiver and home placement—issues that Mr. Burnes himself had previously raised. Instead of calling a meeting, the board used a procedure known as “unanimous written consent.” The Board President, Ms. Martinez, drafted two consent forms, personally brought them to the homes of the other board members, and had each director sign them.

This action, while sidestepping an open meeting, was found to be perfectly legal. The board was operating under the authority of a specific Arizona state law, ARIZ. REV. STAT. section 10-3821, titled “Action without meeting.” This statute explicitly allows the board of a non-profit corporation to take action without a meeting, provided the action is taken by all directors and is documented by written consent.

Furthermore, this power was not just granted by state law; it was also written directly into the HOA’s own governing documents. Section 3.5 of the Saguaro Crest HOA’s bylaws, titled “Action Without a Meeting,” explicitly grants its directors “the right to take any action in the absence of a meeting, which they could take at a meeting by obtaining the written consent of all the directors.”

3.0 Takeaway 2: A Legal Puzzle—When Two State Laws Seem to Conflict

Mr. Burnes’s case created a compelling legal puzzle by highlighting two state laws that appeared to be in direct opposition. On one side was Arizona’s Planned Community law (ARIZ. REV. STAT. section 33-1804), which strongly mandates open meetings for HOA boards and includes a policy statement that any interpretation of the law should be construed “in favor of open meetings.”

On the other side was the state’s Nonprofit Corporation law (ARIZ. REV. STAT. section 10-3821), which, as noted, expressly permits a board to act without a meeting. Mr. Burnes argued that the open meeting law should take precedence.

The Administrative Law Judge, however, made a crucial distinction. Applying a standard legal principle that courts must try to give effect to both laws if possible, the judge determined the two statutes do not actually conflict. The judge’s reasoning clarifies how both can exist and be applied legally.

In this case, both sections 10-3821 and 33-1804 can be given effect in that Respondent may take action without a meeting as allowed by section 10-3821, but if a meeting is held, Respondent must follow the requirements of section 33-1804.

This interpretation is the core of the decision. The open meeting law, with all its requirements for notice and member participation, only applies if a meeting is held. By using the “action without meeting” statute, the Saguaro Crest board legally sidestepped the requirement to hold a meeting in the first place, thereby rendering the open meeting law inapplicable to their actions on that day.

4.0 Takeaway 3: Legislative Intent Can Be Read in a Law’s Silence

Mr. Burnes also advanced a more sophisticated legal argument: that in any conflict, the specific laws written for HOAs (found in Title 33 of the state code) should overrule the more general laws for non-profit corporations (found in Title 10).

The judge’s response to this provided a fascinating lesson in how courts interpret legislative intent, not just from what a law says, but from what it doesn’t say. The judge noted that the section of law governing general membership meetings does contain a specific clause stating that in the case of an inconsistency, the HOA laws control.

Crucially, the section of law governing board meetings, where the “action without meeting” statute is found, has no such clause. The judge interpreted this difference not as an oversight, but as a deliberate choice by lawmakers. This “silence” in the statute was read as a “legislative intent to allow boards latitude to act by consent.” In other words, if the legislature had intended for the open meeting law to always override the board’s ability to act by written consent, it would have explicitly said so, just as it did for membership meetings.

5.0 Conclusion: Efficiency vs. Transparency

While homeowners understandably value and expect open meetings as a tool for transparency and participation, the law also recognizes the need for boards to operate efficiently. The unanimous written consent procedure provides a legal mechanism for boards to make decisions, particularly on straightforward matters, without the time and expense of convening a formal meeting.

This case is more than a legal curiosity; it’s a practical lesson for every homeowner. The power wielded by the Saguaro Crest board is not unique to Arizona. If you want to understand the true scope of your own board’s authority, take these two steps:

1. Review your HOA’s bylaws. Look for a clause titled “Action Without a Meeting” or similar language that grants the board the right to act via written consent. This is the internal authorization.

2. Check your state’s Nonprofit Corporation Act. Search for a statute similar to Arizona’s § 10-3821. This is the ultimate source of the board’s power, and it likely exists in some form in your state, defining the boundary between efficiency and transparency for your community.

Case Participants

Petitioner Side

Clifford (Norm) Burnes (petitioner)
Appeared on his own behalf at the original hearing

Respondent Side

John Crotty (HOA attorney)
Law Offices of Farley, Choate & Wood
Attorney for Saguaro Crest Homeowners Association, Inc.
Esmerelda Sarina Martinez (board president, witness)
Saguaro Crest Homeowners Association, Inc.
Testified as a witness for Respondent
Madill (board member)
Saguaro Crest Homeowners Association, Inc.
Referred to as Mr. Madill

Neutral Parties

Thomas Shedden (ALJ)
Judy Lowe (Commissioner)
ADRE
Commissioner during original decision transmittal
Louis Dettorre (Commissioner)
ADRE
Commissioner during rehearing transmittal
Miranda Alvarez (staff)
Transmittal staff (also noted as Miranda A.)
c. serrano (staff)
Transmittal staff

Other Participants

Jamie Argueta (staff)
Conducted research; position and function apparently not in the record

Sandra Swanson & Robert Barnes v. Circle G Ranches 4 Homeowners

Posted on May 18, 2021 by [email protected]

Case Summary

Case ID	21F-H2120020-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2022-02-02
Administrative Law Judge	Jenna Clark
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Sandra Swanson & Robert Barnes	Counsel	Kristin Roebuck Bethell, Esq.
Respondent	Circle G Ranches 4 Homeowners Association	Counsel	Samantha Cote, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge denied the Petitioners' petition, concluding they failed to prove by a preponderance of the evidence that the Homeowners Association violated ARIZ. REV. STAT. § 33-1805 regarding the availability of voting records.

Why this result: Petitioners failed to demonstrate that the HOA violated the statute through its NDA request or its method of providing the records (redacted ballots and separate unredacted envelopes) and failed to prove the records were not made reasonably available within the required statutory time frame.

Key Issues & Findings

Failure to comply with voting records request (regarding assessment and cumulative voting records)

Petitioners alleged the Association violated ARIZ. REV. STAT. § 33-1805 by requiring an NDA and providing redacted ballots and separate unredacted envelopes, which prevented Petitioners from cross-referencing votes with voters. Respondent argued it timely provided the totality of the requested information and that the manner of delivery did not violate the statute.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: Records Request, HOA Governance, Statute Violation, Voting Records, Non-Disclosure Agreement (NDA)

Additional Citations:

ARIZ. REV. STAT. § 33-1805

Video Overview

Audio Overview

Decision Documents

21F-H2120020-REL Decision – 944169.pdf

Uploaded 2026-04-24T11:31:09 (184.1 KB)

21F-H2120020-REL Decision – 944171.pdf

Uploaded 2026-04-24T11:31:17 (184.1 KB)

21F-H2120020-REL Decision – 881665.pdf

Uploaded 2026-04-24T11:31:20 (167.3 KB)

Administrative Law Judge Decision: Swanson & Barnes v. Circle G Ranches 4 HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 21F-H2120020-REL-RHG, a dispute between homeowners Sandra Swanson & Robert Barnes (“Petitioners”) and the Circle G Ranches 4 Homeowners Association (“Respondent”). The core issue was whether the Association violated Arizona Revised Statute (ARIZ. REV. STAT.) § 33-1805 by its handling of the Petitioners’ request for voting records.

The final order, issued on February 2, 2022, denied the petition. The ALJ concluded that the Petitioners failed to sustain their burden of proof that a statutory violation occurred. The decision found that the Association’s method of providing the requested documents—redacted ballots in one stack and unredacted envelopes in another—was a “reasonable” approach that balanced the Petitioners’ right to examination with the Association’s duty to protect member privacy. While acknowledging this methodology was “not ideal,” the ALJ determined it made the totality of the requested information “reasonably available” as required by law and was not a violation. The ruling also established that the Association’s initial request for the Petitioners to sign a non-disclosure agreement did not constitute a statutory violation.

Case Overview

Entity

Details

Case Number

21F-H2120020-REL-RHG

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

Petitioners

Sandra Swanson & Robert Barnes

Respondent

Circle G Ranches 4 Homeowners Association

Central Allegation

Respondent failed to comply with a January 16, 2020, voting records request, violating ARIZ. REV. STAT. § 33-1805.

Final Order Date

February 2, 2022

Outcome

Petition Denied.

Chronology of Key Events

• October 4, 2017: The Association’s Board of Directors adopts the “Rule Requiring Secret Ballots” for votes on special assessments.

• October 28, 2019 (approx.): A vote occurs regarding an increase in association dues.

• December 2019: A vote occurs regarding a proposed CC&R amendment to prohibit cumulative voting.

• January 6, 2020: Petitioners submit a written request to view the votes for the cumulative voting amendment.

• January 13, 2020: The Association’s Board votes 8:1 to require Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots, citing member privacy concerns. Petitioners decline to sign the NDA.

• January 16, 2020: Counsel for Petitioners submits a formal written request for all ballots and related documents for both the dues increase vote and the cumulative voting amendment.

• January 30, 2020: The Association’s counsel responds, stating the Association must “balance your clients’ requests against the privacy and safety of all Owners” and that the records will be made available for inspection.

• February 7, 2020: Petitioners inspect documents at the office of the Association’s counsel. They are provided with two stacks of documents: redacted ballots and unredacted envelopes. They review the cumulative voting records for approximately 3.5 hours but cannot match specific ballots to specific voter envelopes.

• August 5, 2020: Petitioners issue a new demand for “unredacted ballots” and all related documents. No additional documentation is provided.

• September 22, 2020: Petitioners file a petition with the Arizona Department of Real Estate, initiating the formal dispute process.

• May 17, 2021: An initial ALJ Decision is issued.

• June 22, 2021: Petitioners file a request for a rehearing on the grounds that the decision was “arbitrary, capricious, or an abuse of discretion.”

• July 15, 2021: The rehearing request is granted.

• January 13, 2022: The evidentiary rehearing is held before the OAH.

• February 2, 2022: The final ALJ Decision is issued, again denying the Petitioners’ petition.

Central Legal Arguments

The rehearing focused on oral arguments from both parties regarding the interpretation of ARIZ. REV. STAT. § 33-1805, which mandates that association records be made “reasonably available” for member examination.

Petitioners’ Position

• Unredacted Records Required: The statute requires the production of unredacted copies of requested documents, and the Association’s failure to provide original, unaltered documents was a violation.

• Methodology Impeded Access: By providing redacted ballots and separate unredacted envelopes, the Respondent prevented the Petitioners from cross-referencing votes with voters. This action meant the documents were not made “reasonably available.”

• NDA Was an Unlawful Barrier: The Association’s demand for an NDA was not supported by any enumerated exception in the statute and constituted an unlawful barrier to accessing records.

• No Expectation of Privacy: Petitioners argued that the ballots were not truly “secret ballots” because some had names or signatures on them, meaning voters “could not have reasonably held an expectation of privacy.”

Respondent’s Position

• Statute is Silent on Method: The statute does not specify how records must be made available, only that they must be. Respondent argued it had complied by providing the “totality of records” requested in a timely fashion.

• Balancing of Duties: The Association devised a method to satisfy its dual obligations: complying with the records request and protecting its members’ privacy and safety. This concern was heightened by complaints from other homeowners about “harassing” behaviors by the Petitioners.

• Information Was Provided: The two sets of documents (redacted ballots, unredacted envelopes) amounted to one complete set of unredacted records, allowing Petitioners to “cross reference and discern the information they sought.”

• NDA Was Reasonable: The NDA was proposed to protect member privacy regarding their secret ballot votes. Respondent argued it was ultimately irrelevant to the case, as the records were provided even after Petitioners declined to sign it.

Administrative Law Judge’s Analysis and Final Order

The ALJ’s decision rested on a direct interpretation of ARIZ. REV. STAT. § 33-1805 and a finding that the Petitioners did not meet their evidentiary burden.

Key Rulings and Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Association violated the statute. The ALJ concluded they failed to do so.

2. On the NDA: The Judge explicitly held that “Respondent’s request that Petitioners sign an NDA does not constitute a violation of ARIZ. REV. STAT. § 33-1805.”

3. On Timeliness: The Association’s response on January 30, 2020, to the January 16, 2020, request was within the 10-business-day statutory deadline (which ended January 31, 2020). The Petitioners did not establish that the documents were unavailable for review prior to the February 7 inspection date.

4. On the Method of Disclosure: This was the central finding. The decision states that the manner in which the documents were provided did not violate the statute. The ALJ found that the record reflected that “Petitioners timely received the totality of the documents from their records request(s).” Because there was no evidence that the documents were not made “reasonably available,” a violation could not be concluded.

5. Reasonableness of Association’s Actions: The ALJ offered a final assessment of the Association’s methodology: “While Respondent’s methodology of document delivery to Petitioners may have not been ideal, under the totality of underlying circumstances the decision reasonable and within the requirements of the applicable statute(s).”

Final Order

Based on the finding that the Petitioners did not sustain their burden of proof, the final order was unambiguous: “IT IS ORDERED that Petitioners’ petition is denied.”

The order is binding on the parties, who were notified of their right to seek judicial review by filing an appeal with the Superior Court within 35 days from the date of service.

Study Guide: Swanson & Barnes v. Circle G Ranches 4 HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 21F-H2120020-REL-RHG. It is designed to test and reinforce understanding of the key parties, events, arguments, and legal principles outlined in the case.

Short-Answer Quiz

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

1. Who are the primary parties involved in this legal dispute, and what are their respective roles?

2. What specific statute did the Petitioners allege the Respondent violated, and what is the core requirement of that statute?

3. What two specific sets of voting records did the Petitioners request from the Association in their January 16, 2020 letter?

4. What action did the Association’s Board of Directors take on January 13, 2020, in response to the Petitioners’ initial request, and what was their stated reason for doing so?

5. Describe the method the Association used to provide the requested voting records to the Petitioners on February 7, 2020.

6. What was the Petitioners’ main argument for why the Association’s method of providing the documents failed to comply with the law?

7. What was the Association’s primary defense for the way it provided the records and for its overall actions?

8. According to the “Conclusions of Law,” who bears the burden of proof in this proceeding, and what is the standard required to meet that burden?

9. What was the Administrative Law Judge’s final conclusion regarding the Association’s request that the Petitioners sign a nondisclosure agreement (NDA)?

10. What was the ultimate outcome of the case as determined by the Administrative Law Judge in the final order issued on February 2, 2022?

——————————————————————————–

Answer Key

1. The primary parties are Sandra Swanson & Robert Barnes, who are the “Petitioners,” and the Circle G Ranches 4 Homeowners Association, which is the “Respondent.” The Petitioners are property owners and members of the Association who filed a complaint against it. The Association is the governing body for the residential development, managed by Vision Community Management, LLC.

2. The Petitioners alleged a violation of Arizona Revised Statutes (ARIZ. REV. STAT.) § 33-1805. The core requirement of this statute is that all financial and other records of a homeowners’ association must be made “reasonably available” for examination by any member within ten business days of a request.

3. The January 16, 2020 letter requested all ballots and related documents from the vote regarding the increase in dues that occurred around October 28, 2019. It also requested all written consent forms and ballots for the Proposed Declaration Amendment regarding cumulative voting, which occurred in December 2019.

4. On January 13, 2020, the Board of Directors voted 8 to 1 to require the Petitioners to sign a nondisclosure agreement (NDA) before viewing the ballots. Their stated reason was a concern for members’ expectation of privacy regarding non-public information and a fear that members could be harassed based on their votes.

5. The Association provided the Petitioners with two separate stacks of documents. One stack contained redacted ballots, and the other stack contained unredacted envelopes that the ballots had been mailed in. This method separated the vote from the identity of the voter.

6. The Petitioners argued that by providing redacted copies and separate envelopes, the Respondent had not made the documents “reasonably available” as required by statute. They contended this method created an unlawful barrier because they were unable to cross-reference the ballots with the purported voters to verify the vote.

7. The Association defended its actions by arguing that the statute does not specify the how records should be produced, only that they be made available. It contended that it provided the totality of the information requested in a timely manner while also fulfilling its duty to protect the privacy and safety of its members from potential harassment.

8. The Petitioners bear the burden of proving by a “preponderance of the evidence” that the Respondent violated the statute. A preponderance of the evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

9. The Administrative Law Judge concluded that the Respondent’s request for the Petitioners to sign an NDA did not constitute a violation of ARIZ. REV. STAT. § 33-1805. The judge also noted the NDA was ultimately irrelevant to the outcome because the Association provided the documents even though the Petitioners declined to sign it.

10. The Administrative Law Judge denied the Petitioners’ petition. The judge concluded that the Petitioners did not sustain their burden of proof to show that the Association had committed a violation of ARIZ. REV. STAT. § 33-1805, finding the Association’s actions to be reasonable under the circumstances.

——————————————————————————–

Essay Questions

The following questions are designed to encourage deeper analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and arguments from the case documents.

1. Analyze the central legal conflict over the interpretation of the phrase “reasonably available” in ARIZ. REV. STAT. § 33-1805. Contrast the arguments made by the Petitioners and the Respondent, and explain how the Administrative Law Judge ultimately resolved this conflict in the decision.

2. Discuss the competing interests the Circle G Ranches 4 Homeowners Association attempted to balance in its response to the records request. Evaluate the measures it took, including the proposed NDA and the method of document delivery, in light of its duties to both the Petitioners and its general membership.

3. Trace the procedural history of the case from the initial petition filing on September 22, 2020, to the final order on February 2, 2022. What does this timeline reveal about the administrative hearing and appeals process for HOA disputes in Arizona?

4. The Petitioners argued that the ballots in question were not truly “secret ballots” and that voters could not have had a reasonable expectation of privacy. Based on the evidence presented, construct an argument supporting this position and a counter-argument defending the Association’s stance on member privacy.

5. Examine the legal reasoning employed by the Administrative Law Judge in the “Conclusions of Law.” How did principles of statutory construction and the “preponderance of the evidence” standard directly influence the final order denying the Petitioners’ petition?

——————————————————————————–

Glossary of Key Terms

Definition in the Context of the Document

Administrative Law Judge (ALJ)

The official, in this case Jenna Clark, who presides over the evidentiary hearing at the Office of Administrative Hearings and issues a decision based on findings of fact and conclusions of law.

ARIZ. REV. STAT. § 33-1805

The specific Arizona statute at the heart of the dispute, which mandates that a homeowners’ association’s records be made “reasonably available” for member examination within ten business days of a request.

Association / Respondent

The Circle G Ranches 4 Homeowners Association, the governing body for the residential development and the party against whom the petition was filed.

Board of Directors (the Board)

The group that oversees the Association and is responsible for its governance. The Board voted to require an NDA before releasing voting records.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioners) to produce the evidence that will prove the claims they have made against the other party.

Covenants, Conditions, and Restrictions. These are the governing documents for the Circle G Ranches 4 Homeowners Association.

Department

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

Nondisclosure Agreement (NDA)

A legal contract proposed by the Association’s Board that would have required the Petitioners to keep the voting information confidential. The Petitioners declined to sign it.

Office of Administrative Hearings (OAH)

An independent state agency to which the Department refers HOA dispute cases for an evidentiary hearing before an Administrative Law Judge.

Petitioners

Sandra Swanson and Robert Barnes, members of the Association who filed the petition alleging a violation of state law by the Association.

Preponderance of the Evidence

The evidentiary standard required for the Petitioners to win their case. It is defined as proof that convinces the judge that a contention is more probably true than not.

Redacted

Edited to remove or black out confidential or private information. The Association provided redacted ballots to the Petitioners to protect member privacy.

Vision Community Management, LLC (Vision)

The management company hired by and acting on behalf of the Association.

Your HOA Can Legally Keep Secrets From You. Here’s How.

Introduction: The Fight for Transparency

As a homeowner in an association, you assume a right to see the records. Transparency, after all, is the bedrock of accountability. But a recent legal dispute in Arizona offers a masterclass in how the gap between a right to information and the reality of obtaining it can be vast. The case demonstrates how a determined HOA, armed with a nuanced legal strategy and a literal interpretation of the law, can fulfill its obligation to provide records while ensuring they reveal almost nothing. It’s a story of escalation that began not with redacted documents, but with a demand for a nondisclosure agreement, setting the stage for a battle over what it truly means for records to be “available.”

1. The Two-Pile Shuffle: How “Access” Doesn’t Always Mean “Answers”

The conflict began with a standard request from a group of homeowners (the Petitioners) to examine their HOA’s voting records. The Board’s response, however, was anything but standard. Citing privacy concerns, the Board voted 8-to-1 on a crucial first move: it would require the homeowners to sign a nondisclosure agreement (NDA) before they could view the ballots. The homeowners refused, creating a standoff.

Forced to provide access but unwilling to yield on its privacy stance, the HOA (the Respondent) devised a clever workaround. When the homeowners arrived to inspect the approximately 122 pages of records, they weren’t handed a coherent set of documents. Instead, after spending roughly three and a half hours sifting through the materials, they discovered they had been given two separate stacks: one containing redacted ballots with the votes visible but the names blacked out, and another containing the unredacted envelopes they arrived in.

This “two-pile shuffle” made it impossible to match a ballot to a voter, effectively neutralizing the homeowners’ ability to verify the vote. They argued that this method failed to make the documents “reasonably available” as required by Arizona statute. The HOA’s strategy proved legally astute, leading to a court case that hinged on the very definition of access.

2. The Privacy Shield: A Proactive Defense

The HOA’s justification for its actions was a proactive and layered defense rooted in protecting its members. The Board’s initial demand for an NDA was not a retroactive excuse, but its opening move, signaling a deep-seated concern that releasing the voting information could lead to conflict within the community.

This concern was not merely abstract. Faced with multiple homeowner complaints labeling the Petitioners’ behavior as “harassing,” the Board first attempted to manage the information release by requiring the nondisclosure agreement. When that failed, it developed the two-pile system. The HOA’s legal position was that it had a duty to balance the homeowners’ request against the “privacy and safety of all Owners.” In a letter, the association’s counsel articulated this position clearly:

The Association’s position is that it has to balance your clients’ requests against the privacy and safety of all Owners within the Association. The Board is concerned with the personal information contained on the written consent forms or other documents and fears that individual members will be retaliated against or harassed based on a member’s decision to support, or not support, the matters up for a decision.

This defense, framed as a duty to protect the community from internal strife, became the cornerstone of the HOA’s successful legal argument.

3. The “Reasonably Available” Loophole

The entire legal battle was ultimately decided by the interpretation of a single phrase in Arizona Revised Statute § 33-1805, which requires an association to make its records “reasonably available.” The case exposed a critical ambiguity in the law.

• The Homeowners’ View: They argued that “reasonably available” implies usability. To be meaningful, the records had to be provided in a way that allowed them to cross-reference votes with voters. A deliberately disorganized release, they contended, was not reasonable.

• The HOA’s View: The association countered with a brilliant legal distinction: the statute dictates what records must be produced, not how they must be presented. By providing all the components—the ballots and the envelopes—they had fulfilled their duty, even if they were separated.

In a decision that highlights the judiciary’s deference to the literal text of a statute, the Administrative Law Judge sided with the HOA. The judge’s ruling found no violation because, in the end, the homeowners had received everything they asked for. The legal linchpin of the decision was the finding that “the record reflects that Petitioners timely received the totality of the documents from their records request(s).” This interpretation effectively created a loophole, allowing the HOA to comply with the letter of the law while completely withholding the context the homeowners sought.

Conclusion: When “Legal” Isn’t the Whole Story

This case is a stark reminder that a legally defensible action can still feel like an affront to the spirit of community governance. The HOA’s victory demonstrates that in a dispute over transparency, the side with the more precise reading of the law, rather than the more open approach, may prevail. It reveals the profound tension between a homeowner’s right to know, an association’s duty to protect its members from potential harassment, and the powerful ambiguities hidden in legal statutes. An HOA can, with careful legal maneuvering, use privacy as a shield to deliver information in a way that obscures more than it reveals—and do so without breaking the law.

In a community governed by rules, what’s more important: absolute transparency, or the protection of every member’s privacy?

Case Participants

Petitioner Side

Sandra Swanson (petitioner)
Robert Barnes (petitioner)
Kristin Roebuck Bethell (petitioner attorney)
Horne Siaton, PLLC
Also listed as Kristin Roebuck, Esq.,

Respondent Side

Jeremy Johnson (respondent attorney)
Joes, Skelton & Hochuli, PLC
Samantha Cote (respondent attorney)
Joes, Skelton & Hochuli, PLC
Also listed as Sam Cote, Esq.,
Patricia Ahler (witness)
Circle G Ranches 4 Homeowners Association
Amanda Stewart (witness)
Circle G Ranches 4 Homeowners Association
Jennifer Amundson (witness)
Circle G Ranches 4 Homeowners Association
Regis Salazar (witness)
Circle G Ranches 4 Homeowners Association
Clint Goodman (HOA attorney)
Vision Community Management, LLC
Attorney for Vision, the HOA's property manager,

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Commissioner during initial decision phase
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Commissioner during final/rehearing decision phase,
Dan Gardner (ADRE Staff)
Arizona Department of Real Estate
ADRE contact c/o Commissioner,,

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.

——————————————————————————–

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?

——————————————————————————–

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.

——————————————————————————–

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?

——————————————————————————–

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.

Select all sources

839537.pdf

No emoji found

21F-H2120004-REL

1 source

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

Donald S Fern & Judith A. Hedges vs.

Posted on November 20, 2020 by [email protected]

Case Summary

Case ID	21F-H2120005-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-20
Administrative Law Judge	Thomas Shedden
Outcome	Petitioners were the prevailing party because the Respondent acknowledged violating the CC&Rs by approving the pergola. Respondent was ordered to refund the $500.00 filing fee, but the request for a civil penalty was denied.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Donald S Fern & Judith A. Hedges	Counsel	Lance Leslie
Respondent	San Ignacio Heights, Inc.	Counsel	Michael S. Shupe

Alleged Violations

CC&R Article VI(D)

Outcome Summary

Petitioners were the prevailing party because the Respondent acknowledged violating the CC&Rs by approving the pergola. Respondent was ordered to refund the $500.00 filing fee, but the request for a civil penalty was denied.

Key Issues & Findings

View Obstruction by Pergola Approval

Petitioners alleged that Respondent, by granting approval in February 2018 for the construction of a pergola on lot 47, violated the CC&Rs requirement that an unobstructed view of the Santa Rita Mountains be maintained for owners of View Lots (Lot 46) and sought a civil penalty.

Orders: Respondent acknowledged the violation, rescinded the pergola approval prior to the Notice of Hearing, and was ordered to pay Petitioners the $500.00 filing fee. A civil penalty was sought but denied.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: CC&R Violation, View Obstruction, Architectural Review Committee, Filing Fee Refund, Civil Penalty Denial

Additional Citations:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)

Video Overview

Audio Overview

Decision Documents

21F-H2120005-REL Decision – 838563.pdf

Uploaded 2026-04-24T11:29:42 (90.6 KB)

21F-H2120005-REL Decision – 838563.pdf

Uploaded 2026-01-23T17:34:50 (90.6 KB)

Administrative Hearing Briefing: Fern & Hedges v. San Ignacio Heights, Inc.

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in the case of Donald S. Fern & Judith A. Hedges v. San Ignacio Heights, Inc. (No. 21F-H2120005-REL). The central conflict involved an allegation by Petitioners that the Respondent, their homeowners’ association, violated its own Covenants, Conditions, and Restrictions (CC&Rs) by approving a pergola on an adjacent property that obstructed their mountain view.

The Respondent initially defended its approval but, after the Petitioners filed a formal complaint, reversed its position, admitted the approval was an error, and rescinded it. Despite this corrective action, the hearing proceeded. The ALJ’s final decision declared the Petitioners the “prevailing party,” as their legal action prompted the resolution. Consequently, the Respondent was ordered to reimburse the Petitioners’ $500 filing fee. However, the ALJ denied the Petitioners’ request for an additional civil penalty, stating they had not met the burden of proof for such an assessment. The decision effectively resolved the core dispute in the Petitioners’ favor while limiting the financial penalty on the Respondent.

——————————————————————————–

Case Overview

This matter was brought before the Arizona Office of Administrative Hearings concerning a dispute over view obstruction within a planned community.

Case Detail

Information

Case Name

Donald S. Fern & Judith A. Hedges, Petitioner, vs. San Ignacio Heights, Inc., Respondent.

Case Number

21F-H2120005-REL

Presiding Judge

Administrative Law Judge Thomas Shedden

Hearing Date

November 3, 2020

Decision Date

November 20, 2020

Core Allegation

Respondent violated its own CC&Rs, specifically Article VI (D) “View Obstructions,” which mandates that “An unobstructed view of the Santa Rita Mountains shall be maintained for Owners of View Lots.”

Petitioners’ Property

Lot 46, located at 1546 West Acala Street in Green Valley, a designated “view lot.”

Disputed Structure

A pergola constructed on the neighboring Lot 47.

The hearing was conducted without testimony, with the decision based on the administrative record and closing arguments from both parties.

Chronology of Key Events

The dispute unfolded over a period of more than two years, marked by the Respondent’s significant change in position after formal legal action was initiated.

• February 2018: The Respondent’s Architectural Review Committee (ARC) grants approval to the owners of Lot 47 to construct a pergola.

• On or Before July 30, 2018: Petitioners purchase Lot 46. They contend the pergola was built after the previous owners of their lot had moved but before their purchase was finalized.

• December 2019: Petitioners attempt to resolve the issue directly with the owners of Lot 47 but are unsuccessful.

• January 15, 2020: In a letter, the Respondent’s Board informs the Petitioners that it is standing by its February 2018 decision to approve the pergola.

• July 24, 2020: Petitioners file a formal petition with the Arizona Department of Real Estate.

• August 20, 2020: The Respondent’s Board holds a special executive session and determines that the approval of the pergola was “made in error.” The Board rescinds the approval.

• August 25, 2020: The Respondent files its answer to the petition, stating the approval has been rescinded and requesting the Department dismiss the matter.

• October 5, 2020: The Department does not dismiss the matter and issues a Notice of Hearing.

• November 3, 2020: At the hearing, the Respondent’s counsel informs the tribunal that a contractor is scheduled to remove the pergola on the following day.

Central Arguments and Positions

Petitioners (Donald S. Fern & Judith A. Hedges)

• Violation: The pergola on Lot 47 constitutes a view obstruction in direct violation of CC&R Article VI(D).

• Relief Sought: The Petitioners initially sought the removal of the structure. After the Respondent rescinded its approval, the Petitioners argued that the Respondent should be assessed a civil penalty for the violation.

Respondent (San Ignacio Heights, Inc.)

• Initial Defense (Pre-Litigation): The Respondent offered two primary reasons for upholding its initial approval:

1. The previous owners of the Petitioners’ lot (Lot 46) were given notice of the pergola request and did not object at the time of its approval in February 2018.

2. The configuration of the nine lots on West Acala Street makes a “truly unobstructed view” impossible, and for the Petitioners, achieving such a view would require removing eight other houses.

• Post-Petition Position: After the formal petition was filed, the Respondent’s position shifted entirely.

1. Admission of Error: The Respondent formally acknowledged that the approval of the pergola was a mistake and rescinded it.

2. Mootness: The Respondent argued that because it had provided the relief the Petitioners requested (rescission of approval), the matter was resolved and should be dismissed.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision addressed the acknowledged violation, the status of the parties, and the appropriateness of financial penalties.

Findings on the Violation

• The Respondent explicitly acknowledged its violation of CC&R Article VI(D) by granting approval for the pergola.

• Because the Respondent had already rescinded its approval and the structure was scheduled for removal, the ALJ determined that an order compelling the Respondent to abide by the CC&Rs was unnecessary.

Prevailing Party Status

• Despite the Respondent’s admission of error and corrective actions occurring before the formal hearing, the ALJ designated the Petitioners as the prevailing party.

• The rationale is that the Petitioners’ legal action was the catalyst for the Respondent’s decision to rescind its approval and resolve the violation.

Financial Orders and Penalties

• Filing Fee: Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the ALJ is required to order the respondent to pay the petitioner’s filing fee if the petitioner prevails. Consequently, the Respondent was ordered to pay the Petitioners’ $500.00 filing fee.

• Civil Penalty: The Petitioners argued for the assessment of a civil penalty against the Respondent. The ALJ denied this request, stating in the Conclusions of Law that “Petitioners have not proven that the Respondent should be assessed a civil penalty.” The decision does not provide further detail on the reasoning for this conclusion.

Legal Framework

• Jurisdiction: The Arizona Department of Real Estate has authority over the matter under ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11, as the case involves alleged violations of community documents.

• Standard of Proof: The Petitioners bore the burden of proof, which is a “preponderance of the evidence” as defined in ARIZ. ADMIN. CODE § R2-19-119.

Final Order

The decision, issued on November 20, 2020, concluded with the following binding orders:

1. IT IS ORDERED that Petitioners Donald S. Fern and Judith A. Hedges are the prevailing party in this matter.

2. IT IS FURTHER ORDERED that Respondent San Ignacio Heights Inc. must pay to Petitioners their filing fee of $500.00 within thirty days of receipt of the Order.

The order is final unless a party files for a rehearing with the Commissioner of the Department of Real Estate within 30 days of service.

Study Guide: Fern & Hedges v. San Ignacio Heights, Inc. (Case No. 21F-H2120005-REL)

This study guide provides a detailed review of the Administrative Law Judge Decision in the matter between Donald S. Fern & Judith A. Hedges (Petitioners) and San Ignacio Heights, Inc. (Respondent). It includes a quiz to test comprehension, essay questions for deeper analysis, and a comprehensive glossary of key terms.

——————————————————————————–

Short Answer Quiz

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

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

2. What specific rule from the community’s governing documents was at the center of the dispute?

3. What physical structure caused the dispute, and where was it located relative to the Petitioners’ property?

4. What two arguments did the Respondent initially use to defend its decision to approve the structure?

5. At what point did the Respondent’s Board change its position, and what action did it take?

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

7. Despite the Respondent admitting its error before the hearing, why were the Petitioners declared the “prevailing party”?

8. What specific financial penalty was ordered against the Respondent in the final decision?

9. Why did the Administrative Law Judge decide not to levy a civil penalty against the Respondent?

10. What did the Respondent’s counsel state at the hearing regarding the future of the structure in question?

——————————————————————————–

Answer Key

1. The primary parties were the Petitioners, homeowners Donald S. Fern and Judith A. Hedges, and the Respondent, their homeowners’ association, San Ignacio Heights, Inc. The Petitioners filed a complaint against the homeowners’ association for allegedly violating community rules.

2. The dispute centered on Article VI (D) of the “Second Amended and Restated Declaration of CC&Rs,” titled “View Obstructions.” This rule states that “An unobstructed view of the Santa Rita Mountains shall be maintained for Owners of View Lots.”

3. The dispute was caused by a pergola that the Respondent’s Architectural Review Committee (ARC) approved for construction on lot 47. This lot was adjacent to the Petitioners’ property, lot 46, which is designated as a “view lot” under the CC&Rs.

4. The Respondent initially argued that the approval was valid because (1) the previous owners of lot 46 were notified but did not object, and (2) the configuration of the lots meant a truly unobstructed view was impossible and would require removing eight other houses.

5. The Board changed its position on August 20, 2020, after the Petitioners had already filed their complaint. In a special executive session, the Board determined its February 2018 approval of the pergola was an error and officially rescinded that approval.

6. The standard of proof is a “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioners bore the burden of proof to show that the alleged violation occurred.

7. The Petitioners were declared the “prevailing party” because their legal action was the cause of the Respondent’s decision to rescind the erroneous approval. Under Arizona statute, a tribunal is required to order the respondent to pay the filing fee to the prevailing party.

8. The Judge ordered the Respondent, San Ignacio Heights Inc., to pay the Petitioners their filing fee of $500.00. The payment was to be made within thirty days of receipt of the order.

9. The Judge did not levy a civil penalty because the decision explicitly states, “Petitioners have not proven that the Respondent should be assessed a civil penalty.”

10. At the November 3, 2020 hearing, the Respondent’s counsel informed the tribunal that the owners of lot 47 had a contractor scheduled to remove the pergola the very next day.

——————————————————————————–

Essay Questions for Further Study

The following questions are designed for a more in-depth analysis of the case. Answers are not provided.

1. Analyze the timeline of events from the initial approval of the pergola in February 2018 to the final order in November 2020. How did the Respondent’s actions and communications contribute to the escalation of the dispute, and at what points could it have potentially been resolved before reaching a formal hearing?

2. Discuss the legal concept of the “prevailing party” as it applies to this case. Explain why the Petitioners were granted this status and what financial remedy it entitled them to, even though the Respondent had already conceded the central issue before the hearing.

3. Examine the two initial arguments made by the Respondent to justify its approval of the pergola. Based on the case outcome, why were these arguments ultimately insufficient to defend its position, leading the Board to rescind its approval?

4. Based on the “Conclusions of Law” section, explain the role and authority of the Administrative Law Judge in this type of dispute. What specific powers did the judge have according to Arizona statutes, and how were they applied or not applied in the final order?

5. The decision notes that no testimony was taken and the ruling was based on the administrative record. Discuss the potential advantages and disadvantages of this approach for both the Petitioners and the Respondent in this specific case.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Thomas Shedden) who presides over hearings at the Office of Administrative Hearings and renders a binding legal decision and order.

ARIZ. ADMIN. CODE § R2-19-119

The section of Arizona’s administrative rules cited in the decision that establishes the “preponderance of the evidence” as the standard of proof for the matter.

ARIZ. REV. STAT. § 32-2199.02(A)

The Arizona state law that grants the ALJ the authority to order parties to abide by community documents, levy civil penalties, and order a losing respondent to pay the prevailing petitioner’s filing fee.

Burden of Proof

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

An acronym for Covenants, Conditions, and Restrictions. In this case, it refers to the “Second Amended and Restated Declaration of CC&Rs,” the official governing documents for the San Ignacio Heights community.

Civil Penalty

A monetary fine that an ALJ may levy for each violation of a statute or community document. A civil penalty was considered but not assessed in this case.

Department of Real Estate

The Arizona state agency with legal authority over disputes concerning alleged violations of a community’s CC&Rs.

Filing Fee

The fee ($500.00 in this case) required by Arizona statute to file a petition with the Department of Real Estate. The Judge ordered the Respondent to repay this fee to the Petitioners.

Petitioner

The party that initiates a legal proceeding by filing a petition. In this case, homeowners Donald S. Fern and Judith A. Hedges.

Preponderance of the Evidence

The standard of proof required in the hearing. It is defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Prevailing Party

The party that wins a legal case. The Petitioners were declared the prevailing party, which legally entitled them to have their filing fee reimbursed by the Respondent.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the homeowners’ association, San Ignacio Heights, Inc.

View Lot

A specific property designation defined in the CC&Rs, such as the Petitioners’ lot 46, which is guaranteed an unobstructed view of the Santa Rita Mountains.

View Obstructions

The title of Article VI (D) of the CC&Rs, the specific rule that the Petitioners alleged the Respondent violated by approving the construction of the pergola.

Select all sources

838563.pdf

No emoji found

21F-H2120005-REL

1 source

This administrative law judge decision details a dispute between Petitioners Donald S. Fern and Judith A. Hedges and Respondent San Ignacio Heights, Inc. regarding a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The petitioners alleged that a pergola approved by the Respondent’s Architectural Review Committee was a view obstruction in violation of Article VI(D) of the CC&Rs. Although the Respondent acknowledged its error and rescinded the approval for the pergola before the hearing, the matter was not dismissed. The Administrative Law Judge ultimately found the Petitioners to be the prevailing party and ordered the Respondent to pay the petitioners’ $500 filing fee, though no additional civil penalty was assessed.

What are the core legal and procedural issues decided in this administrative hearing?

How did the Respondent’s actions impact the Petitioners’ prevailing party status and remedy?

What is the significance of the CC&Rs and view obstruction clause in this dispute?

Audio Overview

Video Overview

Mind Map Mind Map

Reports Reports

Flashcards

Quiz

00:00 / 00:00

Case Participants

Petitioner Side

Donald S Fern (petitioner)
Judith A. Hedges (petitioner)
Lance Leslie (petitioner attorney)
Law Office of Susan A Siwek

Respondent Side

Michael S. Shupe (respondent attorney)
Goldschmidt | Shupe, PLLC

Neutral Parties

Thomas Shedden (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate
LDettorre (ADRE staff)
Arizona Department of Real Estate
Listed as recipient of transmission
AHansen (ADRE staff)
Arizona Department of Real Estate
Listed as recipient of transmission
djones (ADRE staff)
Arizona Department of Real Estate
Listed as recipient of transmission
DGardner (ADRE staff)
Arizona Department of Real Estate
Listed as recipient of transmission
ncano (ADRE staff)
Arizona Department of Real Estate
Listed as recipient of transmission

Keith D Smith v. Sierra Foothills Condominium Association

Posted on November 16, 2020 by [email protected]

Case Summary

Case ID	21F-H2120003-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-06-03
Administrative Law Judge	Thomas Shedden
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Keith D Smith	Counsel	—
Respondent	Sierra Foothills Condominium Association	Counsel	Stuart Rayburn

Alleged Violations

CC&R section 7.1(C)
ARIZ. REV. STAT. section 33-1248

Outcome Summary

The petition was dismissed as the Petitioner failed to prove by a preponderance of the evidence that the Association violated CC&R section 7.1(C) or ARIZ. REV. STAT. section 33-1248. The rule limiting sign use was deemed reasonable.

Why this result: Petitioner failed to meet the burden of proof on both issues.

Key Issues & Findings

Alleged unreasonable discrimination in adopting rules regarding common elements (monument sign)

Petitioner alleged the Association violated CC&R 7.1(C) by adopting a rule limiting the use of the common element monument sign to only owners in Building B, arguing this was unreasonable discrimination against Building A owners.

Orders: Petition dismissed for this issue.

Filing fee: $250.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

CC&R section 7.1(C)
CC&R section 6.26(a)
ARIZ. REV. STAT. section 33-1217

Alleged open meeting law violation at the June 10, 2020 Board meeting

Petitioner alleged the Board violated open meeting laws by communicating via email and reaching a decision prior to the June 10, 2020 meeting, claiming the President called for a vote without discussion.

Orders: Petition dismissed for this issue.

Filing fee: $250.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. section 33-1248

Analytics Highlights

Topics: Condominium, Commercial HOA, Signage rules, Open meeting law, Discrimination

Additional Citations:

ARIZ. REV. STAT. section 33-1248
CC&R section 7.1(C)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 41-1092.07(F)(6)

Video Overview

Audio Overview

Decision Documents

21F-H2120003-REL Decision – 885949.pdf

Uploaded 2026-04-24T11:29:16 (143.3 KB)

21F-H2120003-REL Decision – 837073.pdf

Uploaded 2026-04-24T11:29:19 (103.9 KB)

21F-H2120003-REL Decision – 837073.pdf

Uploaded 2026-01-23T17:34:29 (103.9 KB)

Smith v. Sierra Foothills Condominium Association: A Briefing on the Monument Sign Dispute

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between Keith D. Smith, a commercial condominium unit owner, and the Sierra Foothills Condominium Association. The core of the dispute is a rule enacted by the Association on June 10, 2020, which restricts the use of a common element monument sign exclusively to unit owners in one of the property’s two buildings.

Mr. Smith filed a petition alleging two primary violations:

1. Unreasonable Discrimination: The sign rule violated the Association’s Covenants, Conditions, and Restrictions (CC&Rs) by unfairly discriminating against owners in his building.

2. Open Meeting Law Violation: The Association’s Board violated state open meeting laws by allegedly deciding on the rule via email before the public meeting and calling for a vote without discussion.

The Administrative Law Judge dismissed Mr. Smith’s petition in an initial decision on November 16, 2020, and again after a rehearing in a final decision on June 3, 2021. The judge concluded that Mr. Smith failed to meet his burden of proof on both claims. The sign rule was deemed a reasonable measure to address the differing visibility and street frontage of the two buildings. The allegation of an open meeting law violation was dismissed due to a lack of substantial evidence from the petitioner and credible contradictory testimony from the Association’s representatives.

——————————————————————————–

Case Overview

This matter was adjudicated by the Office of Administrative Hearings for the Arizona Department of Real Estate. The case involves a petition filed by a unit owner against his condominium association regarding rules governing common elements.

Detail

Description

Case Numbers

21F-H2120003-REL (Original)
21F-H2120003-REL-RHG (Rehearing)

Petitioner

Keith D. Smith (Owner in Building A)

Respondent

Sierra Foothills Condominium Association

Presiding Judge

Administrative Law Judge Thomas Shedden

Key Dates

July 24, 2020: Petition filed by Keith D. Smith.
October 26, 2020: Original hearing conducted.
November 16, 2020: Initial decision issued, dismissing the petition.
June 3, 2021: Rehearing decision issued, reaffirming dismissal.

Central Issues and Allegations

The dispute centered on a monument sign with space for only five businesses at a commercial condominium property consisting of two buildings, Building A and Building B.

1. The Monument Sign Rule (CC&R Violation)

At a meeting on June 10, 2020, the Association’s Board adopted a rule limiting the use of the monument sign to unit owners in Building B. Mr. Smith, an owner in Building A, alleged this violated the Association’s governing documents.

• Petitioner’s Allegations:

◦ The rule violates CC&R Section 7.1(C), which states that rules “shall not unreasonably discriminate among Owners and Occupants.”

◦ The rule violates the principle of CC&R Section 6.26(a), which requires use restrictions within Article 6 of the CC&Rs to be applicable to all occupants.

◦ As an owner, Mr. Smith holds an undivided interest in the common elements, meaning no owner should have exclusive use of the sign. He argued the rule amounted to an improper “partition” of a common element.

• Respondent’s Position:

◦ The rule is reasonable and non-discriminatory because it addresses a fundamental inequity in property layout: Building A has street frontage for signage, while Building B does not.

◦ The limited space on the monument sign (five slots) necessitates a managed approach to its use.

◦ While initially questioning if the sign was a common element, the Association waived this argument by acknowledging it as such in its official answer.

2. The June 10, 2020 Board Meeting (Open Meeting Law Violation)

Mr. Smith alleged that the Board’s conduct during the meeting at which the rule was passed violated Arizona’s open meeting law, specifically ARIZ. REV. STAT. section 33-1248.

• Petitioner’s Allegations:

◦ The Association’s president called for a vote on the new rule “without discussion,” implying a decision had already been made.

◦ Mr. Smith asserted that Board members must have “Obviously communicated with each other via email and reached their decision without ever hearing my argument.”

• Respondent’s Position:

◦ Association President Stuart Rayburn and witness Harold Bordelon provided “credible testimony” that a “protracted discussion lasting about an hour and a half” occurred before the vote.

◦ They testified that Mr. Smith himself spoke for approximately twenty minutes during this discussion.

Evidence and Proposed Solutions

• Petitioner’s Evidence: Mr. Smith testified on his own behalf and submitted an email from the City of Phoenix regarding signage rules. He also presented two estimates for altering the monument sign to accommodate more businesses—one by reducing the size of existing signs (which he offered to fund) and another by enlarging the monument itself.

• Respondent’s Evidence: The Association presented testimony from its president, Stuart Rayburn, and Harold Bordelon. They submitted Section 705 of the City of Phoenix’s Zoning Ordinance, which they argued showed flexibility in the sign code. Mr. Bordelon testified that some of Mr. Smith’s proposed alterations to the sign did not comply with the city code.

Administrative Law Judge’s Rulings and Rationale

The ALJ’s decisions in both the original hearing and the rehearing were consistent, leading to the dismissal of Mr. Smith’s petition. The core rationale rested on the petitioner’s failure to meet the required burden of proof.

Original Decision (November 16, 2020)

The initial ruling found decisively in favor of the Association.

• On the CC&R Violation: The ALJ concluded that Mr. Smith did not prove a violation of CC&R Section 7.1(C) for two primary reasons:

1. The rule was not unreasonable, as it rationally addressed the physical disadvantage of Building B, which “does not have street frontage,” compared to Building A, which does.

2. Mr. Smith’s reliance on CC&R Section 6.26(a) was misplaced, as “by its express terms, CC&R section 6.26 applies only to CC&R Article 6, and not Article 7,” where the Board’s authority to make rules resides.

• On the Open Meeting Law Violation: The ALJ found the allegation unsupported.

◦ Mr. Smith “offered no substantial evidence” for his claim of pre-meeting communication.

◦ His testimony that the Board called for a vote “without discussion is proven to be in error” based on credible opposing testimony.

Rehearing Decision (June 3, 2021)

Mr. Smith requested a rehearing on several grounds, including alleged irregularities, errors of law, and claims that the findings were arbitrary or not supported by evidence. The ALJ granted the rehearing but ultimately reaffirmed the original decision.

• Scope of the Rehearing: The judge clarified that the rehearing was limited to the two original issues and could not consider new evidence or allegations not raised in the initial petition.

◦ Evidence that Mr. Smith claimed to have (an email supporting the open meeting violation) was not considered because it was not offered at the original hearing.

◦ Arguments related to new statutes (e.g., ARIZ. REV. STAT. section 33-1217 on partitioning common elements) were dismissed as they were not part of the original petition.

• Reaffirmation of Rulings:

◦ The judge reiterated that CC&R Section 6.26(a) explicitly limits its effect to Article 6. He noted that Mr. Smith himself had argued the CC&Rs “should be read and applied as one continuous document unless the document clearly states otherwise,” which it did in this case.

◦ The conclusion that the sign rule was reasonable was upheld.

◦ The dismissal of the open meeting law claim was reaffirmed, as Mr. Smith still presented no substantial evidence, instead relying on a “rhetorical question” about how a vote could be called without prior communication.

Key Legal Standards Applied

The ALJ’s decisions were guided by specific legal principles and administrative codes.

Standard

Application in the Case

Burden of Proof

The Petitioner, Keith D. Smith, bore the burden to prove his allegations by a “preponderance of the evidence.” The ALJ concluded this standard was not met.

Preponderance of the Evidence

Defined as evidence with the “most convincing force” that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Substantial Evidence

The standard required for an ALJ’s decision, defined as evidence a “reasonable mind would use to reach a conclusion.”

Scope of Adjudication

The hearing and subsequent decisions were strictly limited to the issues formally raised and paid for in the original petition, pursuant to ARIZ. REV. STAT. § 41-1092.07(F)(6).

Admissibility of Evidence

Evidence not presented at the original hearing cannot be considered in a rehearing, as established by ARIZ. ADMIN. CODE § R2-19-115.

Study Guide: Smith v. Sierra Foothills Condominium Association

This guide provides a comprehensive review of the administrative case Keith D. Smith v. Sierra Foothills Condominium Association, based on the initial Administrative Law Judge Decision and the subsequent Decision on Rehearing. It is designed to test and deepen understanding of the facts, legal arguments, and outcomes of the proceedings.

Quiz: Short Answer Questions

Instructions: Answer the following questions in 2-3 sentences based on the provided case documents.

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

2. What were the two central allegations Keith D. Smith made against the Sierra Foothills Condominium Association in his petition?

3. What specific action did the Association’s Board take on June 10, 2020, that initiated this dispute?

4. What justification did the Association provide for creating a rule that exclusively benefited the owners of units in Building B?

5. On what grounds did the Administrative Law Judge (ALJ) reject Mr. Smith’s argument that the sign rule violated CC&R section 6.26(a)?

6. What was the “preponderance of the evidence” standard, and who bore the burden of meeting it in this case?

7. Why was Mr. Smith’s allegation of an open meeting law violation dismissed in the original hearing?

8. What were the primary grounds Mr. Smith cited when requesting a rehearing of the initial decision?

9. In the rehearing, Mr. Smith mentioned having an email that supported his open meeting law claim. Why did the ALJ refuse to consider this evidence?

10. What was the final outcome of both the original hearing on October 26, 2020, and the subsequent rehearing decision on June 3, 2021?

——————————————————————————–

Quiz Answer Key

1. The primary parties were Keith D. Smith, the Petitioner, and the Sierra Foothills Condominium Association, the Respondent. Mr. Smith, an owner of a unit in Building A, filed a petition alleging violations by the Association, which manages the common elements of the condominium complex.

2. Mr. Smith alleged that the Association had violated CC&R section 7.1(C) by creating an unreasonable and discriminatory rule. He also alleged a violation of the open meeting law, ARIZ. REV. STAT. section 33-1248, claiming the Board made its decision before the public meeting.

3. On June 10, 2020, the Association’s Board adopted a new rule regarding the monument sign, a common element. This rule limited the use of the sign, which had space for only five businesses, to the owners of units located in Building B.

4. The Association argued the rule was reasonable because Building A has street frontage where signs can be hung, providing visibility. In contrast, Building B lacks street frontage, making the monument sign a critical advertising tool for its occupants.

5. The ALJ rejected the argument because the text of CC&R section 6.26(a) explicitly states its applicability is limited to the restrictions “contained in this Article 6.” The disputed rule was created under the authority of Article 7, so the non-discrimination clause of Article 6 did not apply.

6. The “preponderance of the evidence” is the standard of proof requiring that the evidence be of greater weight and more convincing force, inclining a fair mind to one side of the issue. In this administrative hearing, the Petitioner, Keith D. Smith, bore the burden of proof to show the alleged violations occurred by this standard.

7. The allegation was dismissed due to a lack of substantial evidence. Mr. Smith acknowledged he had no emails to support his claim of prior communication, and the credible testimony of Stuart Rayburn and Harold Bordelon established that a lengthy discussion did occur at the meeting before the vote was taken.

8. Mr. Smith requested a rehearing on several grounds, including alleged irregularity in the proceedings, abuse of discretion by the ALJ, errors of law (such as in the admission or rejection of evidence), and that the decision was arbitrary, capricious, and not supported by the evidence.

9. The ALJ refused to consider the email because evidence must be presented during the original hearing. Since Mr. Smith did not offer the document at the October 26, 2020 hearing, it could not be introduced for the first time in a request for a rehearing.

10. In both the original hearing decision (November 16, 2020) and the rehearing decision (June 3, 2021), Keith D. Smith’s petition was dismissed. The ALJ consistently found that Mr. Smith had failed to meet his burden of proof for both the CC&R violation and the open meeting law violation.

——————————————————————————–

Essay Questions

Instructions: Formulate detailed responses to the following prompts, synthesizing evidence and arguments from both administrative decisions.

1. Analyze the legal reasoning employed by Administrative Law Judge Thomas Shedden to conclude that the monument sign rule was not an “unreasonable” discrimination among owners under CC&R section 7.1(c).

2. Trace the evolution of Keith D. Smith’s open meeting law allegation from his initial petition through his request for rehearing. Discuss the specific evidence presented (or lack thereof) and explain why the ALJ found his claims unconvincing at every stage.

3. Explain the concept of procedural limitations in administrative hearings, using Mr. Smith’s case as an example. Focus on why the ALJ could only consider two issues, why new evidence was rejected on rehearing, and why other “perceived deficiencies” were not addressed.

4. Discuss the significance of the “common elements” in this dispute. How did Mr. Smith’s claim of an “undivided interest” in the monument sign contrast with the Association’s right to regulate its use, and how was this conflict ultimately resolved by the ALJ?

5. Evaluate the arguments presented regarding CC&R section 6.26(a). Explain Mr. Smith’s interpretation of the clause and the ALJ’s contrary interpretation based on the explicit text of the document.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Thomas Shedden.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. Sections 33-1248 (open meeting law) and 33-1217 (partition of common elements) were cited.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the burden of proof was on the Petitioner, Keith D. Smith.

CC&Rs (Covenants, Conditions & Restrictions)

The governing legal documents that set up the guidelines for a planned community or condominium. The key sections in this case were 6.10, 6.24, 6.26(a), and 7.1(c).

Common Elements

Parts of a condominium property that are owned in common by all unit owners and managed by the association. The monument sign was acknowledged by the Association as a common element.

Monument Sign

A freestanding sign at the property entrance that was the central subject of the dispute. It had space for only five businesses to advertise.

Office of Administrative Hearings (OAH)

The state agency where the hearings for this case were conducted.

Open Meeting Law

A state statute (ARIZ. REV. STAT. section 33-1248) requiring that meetings of governing bodies, like an HOA board, be conducted in public with proper notice and opportunity for member input.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, Keith D. Smith.

Preponderance of the Evidence

The standard of proof in this case, defined as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Rehearing

A second hearing of a case to reconsider the initial decision, typically granted on specific grounds such as procedural error or a decision contrary to evidence. Mr. Smith’s request for rehearing was granted but the original decision was upheld.

Respondent

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

Substantial Evidence

Evidence that a reasonable mind would use to reach a conclusion. The ALJ found that Mr. Smith offered no substantial evidence for his open meeting law claim.

Waived

The voluntary relinquishment of a known right or argument. The Association waived its argument that the monument sign was not a common element by acknowledging that it was in its official Answer.

I Read a 17-Page HOA Lawsuit Over a Sign. Here Are 5 Surprising Lessons for Every Homeowner.

Introduction: The Signpost to a Bigger Story

For anyone living in a community with a Homeowner or Condominium Association, the rulebook can feel like a source of endless frustration. The rules often seem complex, arbitrary, and difficult to challenge. But what really happens when an owner decides to fight back?

I recently analyzed the initial ruling and final rehearing decision—17 pages in all—from just such a fight: a formal petition filed by Keith D. Smith against the Sierra Foothills Condominium Association. This wasn’t a residential dispute over lawn ornaments or paint colors; it was a commercial conflict over who was allowed to use a single monument sign. But within this seemingly small micro-drama are universal lessons that are shockingly relevant to any owner navigating a dispute with their association.

Here are five surprising lessons from Mr. Smith’s legal battle that every owner should understand.

1. Read the Fine Print. No,ReallyRead It.

Mr. Smith’s primary argument was one of unfair discrimination. He owned a unit in Building A and was prohibited from using the monument sign, a common element, while owners in Building B were allowed to use it. He pointed to a specific rule in the governing documents, CC&R section 6.26(a), which stated that use restrictions must be applicable to all owners. This seemed like a clear-cut case of the board violating its own rules.

He lost. The reason was a tiny but critical detail in the fine print. The judge found that the non-discrimination clause Mr. Smith cited explicitly stated it only applied to rules “contained in this Article 6.” The board’s authority to create the sign rule came from a different section entirely, “Article 7,” specifically section 7.1(c), which did not contain the same mandate for equal application.

The judge’s finding on the rehearing was conclusive:

“Section 6.26(a) provides that the use restrictions ‘contained in this Article 6’ are applicable to all owners. Consequently, section 6.26(a) cannot be read to require that rules promulgated under section 7.1(c) must apply to all owners.”

The specific structure and wording of your governing documents are paramount. An assumption about a rule’s general intent is not enough. A single phrase—like “in this Article 6″—can make or break an entire legal argument.

2. What Feels Unfair Isn’t Always Legally “Unreasonable”

From Mr. Smith’s perspective, the situation was fundamentally unfair. As a property owner, he had an undivided interest in all common elements, including the monument sign. To be completely excluded from using it felt like a violation of his ownership rights.

However, the Association and the judge saw it differently. The rule was deemed legally “reasonable” for two logical and practical reasons:

1. The sign had a very limited number of spaces—only five businesses could be advertised.

2. Building A, where Mr. Smith’s unit was located, had valuable street frontage where businesses could place their own signs. Building B, in contrast, had no street frontage, making the monument sign the primary and essential tool for visibility for those businesses.

This is where the fine print from the first lesson comes roaring back. The judge noted that the board’s authority under section 7.1(c) “on its face allows discrimination among owners” as long as it wasn’t unreasonable. The specific language of the documents gave the board the explicit power to treat owners differently, provided there was a rational basis—which, in this case, there was. In association disputes, the legal standard is often “reasonableness,” which is evaluated based on context and logic, not just an individual’s feeling of fairness.

3. Suspecting a “Secret Meeting” Isn’t Enough to Prove It

Mr. Smith also alleged that the board violated the open meeting law. He claimed that when the sign issue came up at the board meeting, the president immediately called for a vote without any discussion. This led him to believe the decision had already been made in secret via email.

In his petition, he stated his certainty in plain terms:

“Obviously, the board members communicated with each other via email and reached their decision without ever hearing my argument.”

This claim failed completely. At the hearing, Mr. Smith acknowledged that he had no emails or other documents to support his allegation. Furthermore, the Association’s president and another member presented “credible testimony” that, contrary to Mr. Smith’s recollection, a “protracted” discussion lasting about an hour and a half had, in fact, taken place before the vote was called.

An accusation, no matter how “obvious” it seems to you, is not evidence. To successfully challenge an association’s procedure, you must provide proof. Suspicion and personal interpretation of events are not enough to win a legal claim.

4. Your First Shot Is Often Your Only Shot

After the judge dismissed his initial petition, Mr. Smith filed for a rehearing. In this new request, he tried to introduce new arguments and evidence to bolster his case. Specifically, he raised:

• A brand-new claim that the sign rule violated a state statute (ARIZ. REV. STAT. section 33-1217) concerning the partitioning of common elements.

• A reference to an email he now claimed to possess that would support his open meeting law violation argument.

The judge flatly rejected these new points. The reason was purely procedural: the rules of the legal process require all claims and evidence to be presented in the initial petition and at the original hearing. You cannot hold arguments in reserve to see how the first ruling goes.

The judge’s decision was unequivocal:

“Consequently, evidence that Mr. Smith did not present at the original hearing cannot be considered in this rehearing.”

The legal process is not flexible. You must build your entire case and present all your evidence from the very beginning. Your first shot is often your only shot.

5. The Burden of Proof Is on the Accuser

This may be the most crucial lesson of all. In a dispute like this, the legal responsibility, or “burden of proof,” was on Mr. Smith to prove that the Association had acted improperly. It was not the Association’s job to prove its innocence.

The standard he had to meet was “a preponderance of the evidence.” The judge’s decision included a formal definition of this standard, which clearly explains the high bar an accuser must clear:

“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ultimately, the judge concluded that Mr. Smith “did not prove” that either of his claims met this standard. His feelings of unfairness and his suspicions of improper procedure were not supported by superior evidentiary weight, and his petition was dismissed. If you decide to formally challenge your association, you are the accuser, and you carry the burden of proof.

Conclusion: Know the Rules of the Game

A seemingly minor dispute over a commercial sign reveals fundamental truths about navigating any rule-based organization, especially an HOA or Condo Association. The outcome hinged on the precise language of the documents, the legal definition of “reasonable,” the high bar for proving misconduct, and the rigid procedures of the hearing process. Mr. Smith’s case serves as a powerful reminder that to successfully challenge the rules, you must first master the rules of the game.

This entire conflict hinged on the specific wording of a few sentences in a thick rulebook. When was the last time you truly read the documents that govern your own community, and what crucial details might be hiding in plain sight?

Case Participants

Petitioner Side

Keith D Smith (petitioner)
Appeared on his own behalf; Unit Owner

Respondent Side

Stuart Rayburn (association president)
Sierra Foothills Condominium Association
Representative for Respondent
Harold Bordelon (witness)
Sierra Foothills Condominium Association
Testified for the Association

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Judy Lowe (commissioner)
Arizona Department of Real Estate
Recipient of transmission
LDettorre (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)
ncano (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)

Don France v. Mesa East Property Owners Association

Posted on September 21, 2020 by [email protected]

Case Summary

Case ID	20F-H2020056-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-09-21
Administrative Law Judge	Thomas Shedden
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Don France	Counsel	—
Respondent	Mesa East Property Owners Association	Counsel	B. Austin Bailio

Alleged Violations

CC&R section 2.7

Outcome Summary

The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.

Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.

Key Issues & Findings

Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)

Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.

Orders: Don France's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 41-1092.07(F)(6)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: CC&R, RV storage, Estoppel, Fines

Additional Citations:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 41-1092.07(F)(6)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. section 41-1092.09

Video Overview

Audio Overview

Decision Documents

20F-H2020056-REL Decision – 924655.pdf

Uploaded 2026-04-24T11:27:03 (39.2 KB)

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2026-04-24T11:27:11 (96.1 KB)

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2026-01-23T17:32:50 (96.1 KB)

Administrative Hearing Briefing: France v. Mesa East Property Owners Association

Executive Summary

This document provides a detailed analysis of the administrative hearing decision in case number 20F-H2020056-REL, involving petitioner Don France and respondent Mesa East Property Owners Association (the “Association”). The core of the dispute was the Association’s enforcement of its Covenants, Conditions, and Restrictions (CC&Rs), specifically section 2.7, which requires a six-foot-high gate for Recreational Vehicles (RVs) stored on a property.

The petitioner, Mr. France, was fined by the Association in 2019 for not having the required gate on an RV structure that the Association itself had approved in 2014. Mr. France initially filed a petition alleging the Association was in violation of its own CC&Rs. However, at the September 1, 2020 hearing, he conceded this was not the case and instead argued the Association was “estopped”—or legally prevented—from enforcing the rule due to its prior approval.

The Administrative Law Judge ultimately dismissed Mr. France’s petition on procedural grounds. The judge determined that since Mr. France acknowledged his petition’s central claim was incorrect, he had failed to meet his burden of proof. The new arguments concerning estoppel and the legality of the fines were deemed not properly before the tribunal because they were not included in the original petition. The decision underscores the critical importance of aligning claims made in a formal petition with the arguments presented at a hearing.

Case Overview

Case Number

No. 20F-H2020056-REL

In the Office of Administrative Hearings

Petitioner

Don France

Respondent

Mesa East Property Owners Association

Respondent’s Counsel

B. Austin Bailio, Esq.

Administrative Law Judge

Thomas Shedden

Hearing Date

September 1, 2020

Decision Date

September 21, 2020

The central issue of the case revolves around the enforcement of CC&R section 2.7, which mandates that RVs stored on a property must be screened behind a structure with a six-foot-high gate. This requirement is mirrored by a City of Mesa municipal code.

Chronology of Key Events

• 2014: Mr. France applies for and receives approval from the Association’s Architectural Review Committee (ARC) to build an RV port. In his application, he acknowledges he will abide by deed restrictions and City of Mesa codes.

• October 21, 2014: The Association issues its final approval for the structure, which is built without a gate.

• Circa 2018: Following threats of litigation from other residents over non-enforcement of the CC&Rs, the Association begins a new enforcement campaign for the six-foot gate rule. The City of Mesa denies the Association’s request to “grandfather in” non-compliant homes.

• 2019: The deadline for residents to come into compliance passes.

• March 11, 2019: The Association issues a Notice of Violation (NOV) to Mr. France for lacking the required gate.

• April 5, 2019: Through an attorney, Mr. France asserts that the Association is estopped from enforcing the rule due to its 2014 approval.

• May 15, 2019: The Association’s attorney rejects the estoppel claim and informs Mr. France’s attorney that fines of $500 per week will be assessed.

• May 31, 2019: The Association assesses a $500 fine against Mr. France, with additional fines assessed later.

• July 24, 2019: The City of Mesa issues its own NOV to Mr. France, citing a violation of city code 11-34-5(B), which also requires a six-foot screening fence for RVs.

• April 16, 2020: Mr. France files a petition alleging the Association is in violation of CC&R section 2.7.

• Prior to Hearing: To comply with the City of Mesa’s NOV, Mr. France installs a temporary gate at a cost of approximately $800.

• September 1, 2020: The administrative hearing is conducted.

Analysis of Arguments and Testimonies

Petitioner’s Position (Don France)

• Initial Petition: The formal petition, filed on April 16, 2020, was based on the single issue that the Mesa East Property Owners Association had violated its own CC&R section 2.7.

• Revised Argument at Hearing: During the hearing, Mr. France acknowledged that the Association was not, in fact, violating section 2.7. His argument shifted to a claim of estoppel, asserting that the Association could not enforce the rule against him because its own ARC had approved his gateless structure in 2014.

• Requested Relief: Mr. France asked the judge to rule that the Association could not require him to install a gate and to invalidate any outstanding fines levied against him.

• Supporting Testimony: Joann Van Kirk, the chairperson of the ARC in 2014, testified on Mr. France’s behalf. She stated that she had been informed by a past chair that no gate was required for structures like Mr. France’s, citing other properties that had RV shelters without gates. She also testified that she called the City of Mesa at the time and was told a gate was not required if the structure was attached to the house.

Respondent’s Position (Mesa East POA)

• Basis for Enforcement: The Association began strictly enforcing the gate requirement around 2018 after being threatened with lawsuits by other members for failing to enforce the CC&Rs.

• Enforcement Actions: After an unsuccessful attempt to have the City of Mesa grandfather in non-compliant properties, the Association notified members of the requirement via its newsletter and online, setting a compliance deadline of 2019. When Mr. France did not comply, the Association issued an NOV and subsequently began assessing fines.

• Legal Stance: The Association’s counsel formally rejected Mr. France’s estoppel argument in May 2019.

• Supporting Testimony: Donald Smith testified that at the time the NOV was issued to Mr. France, eleven other residents were also non-compliant. By the hearing date, six remained in violation, five of whom had agreed to comply. This testimony was intended to show that the enforcement was not targeted solely at Mr. France.

Independent Municipal Action

The City of Mesa’s regulations played a significant and independent role in the matter.

• City Code: The City of Mesa has its own ordinance, Code section 11-34-5(B), which requires RVs taller than six feet to be screened by a six-foot-tall fence.

• Notice of Violation: On July 24, 2019, the City issued its own NOV to Mr. France for violating this code.

• Consequence: This municipal enforcement action compelled Mr. France to install a temporary gate to avoid penalties from the City, regardless of the outcome of his dispute with the Property Owners Association.

Administrative Law Judge’s Decision and Rationale

Final Order: IT IS ORDERED that Don France’s petition is dismissed.

The judge’s decision to dismiss the case was based on a precise legal and procedural rationale, rather than the merits of the estoppel argument.

• Failure of the Core Claim: The judge noted that Mr. France’s petition was limited to the single claim that the Association had violated CC&R section 2.7. At the hearing, Mr. France himself admitted this was not the case. As the petitioner, Mr. France bore the burden of proof, and his own testimony demonstrated that the “preponderance of the evidence shows that there is no violation.”

• Jurisdictional Limitation: The new issues raised by Mr. France at the hearing—namely the estoppel argument and the legality of the fines—were declared “not properly before the tribunal.” The judge reasoned that these claims were not included in the original petition, a separate filing fee was not paid for a second issue, and the claims were not listed in the official Notice of Hearing. This procedural failure prevented the judge from ruling on the substance of these arguments.

Conclusion and Post-Decision Protocol

The dismissal of Mr. France’s petition represents a conclusive finding in favor of the respondent based on the specific claims filed. The decision illustrates that the scope of an administrative hearing is strictly defined by the issues raised in the initial petition.

According to the decision document, the order is binding on both parties unless a rehearing is granted. A request for a rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order, pursuant to Arizona Revised Statutes.

Study Guide: France v. Mesa East Property Owners Association (No. 20F-H2020056-REL)

This guide provides a comprehensive review of the administrative hearing decision in the case between Don France (Petitioner) and the Mesa East Property Owners Association (Respondent), as decided by Administrative Law Judge Thomas Shedden.

——————————————————————————–

Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the provided legal decision.

1. Who are the primary parties in this case, and what was the single issue alleged in the Petitioner’s original petition filed on April 16, 2020?

2. According to CC&R section 2.7 and the City of Mesa’s code, what is the specific requirement for storing a recreational vehicle (RV) on a property?

3. What enforcement actions did the Mesa East Property Owners Association take against Don France in the spring of 2019?

4. What was Don France’s primary legal argument against the Association’s enforcement, which he revealed at the September 1, 2020 hearing?

5. What was the state of compliance on Mr. France’s property regarding the RV gate as of the hearing date, and what prompted this action?

6. According to the testimony of Donald Smith, what prompted the Association to begin enforcing the six-foot gate requirement around 2018?

7. What key information did Joann Van Kirk, the 2014 chairperson of the Architectural Review Committee, provide in her testimony?

8. How did the Petitioner’s argument at the hearing differ from the allegation in his initial petition, and why was this difference critical to the case’s outcome?

9. Why did the Administrative Law Judge decline to rule on the legality of the fines the Association had levied against Mr. France?

10. What was the ultimate order issued by the Administrative Law Judge, and what was the legal reasoning behind this decision?

——————————————————————————–

Answer Key for Short-Answer Questions

1. The primary parties are Don France, the Petitioner, and the Mesa East Property Owners Association, the Respondent. The single issue alleged in Mr. France’s petition was that the Association was in violation of its own CC&R section 2.7.

2. Both CC&R section 2.7 (the 1994 version) and the City of Mesa’s code (section 11-34-5(B)) require that RVs stored on a property must be screened behind a structure with a gate that is at least six feet high. The CC&Rs also specified the fence and gate must be tall enough to prevent a person from seeing the RV.

3. On March 11, 2019, the Association issued a Notice of Violation to Mr. France because his RV structure lacked a six-foot gate. Subsequently, on May 31, 2019, the Association fined him $500 for the same violation.

4. At the hearing, Mr. France’s primary argument was that the Association was “estopped” from finding him in violation of section 2.7. He argued this because the Association’s Architectural Review Committee had approved his RV structure in 2014 without the gate.

5. As of the hearing date, Mr. France had installed a temporary six-foot gate at a cost of about $800. This action was taken to comply with a Notice of Violation issued to him by the City of Mesa on July 24, 2019.

6. Donald Smith testified that around 2018, people were threatening to sue the Association if it did not enforce the CC&Rs. After meeting with the City of Mesa, which would not allow non-compliant homes to be grandfathered in, the Association began enforcing the gate requirement.

7. Joann Van Kirk testified that in 2014, she had learned from the past ARC chair that no gate was required because other owners had shelters without gates. She also testified that she called the City of Mesa and was told no gate was required if the structure was attached to the house.

8. While his petition alleged the Association had violated section 2.7, at the hearing Mr. France acknowledged this was not the case and argued instead that the Association was estopped from enforcing that section against him. This was critical because the judge could only rule on the single issue raised in the petition, which Mr. France conceded had no merit.

9. The judge declined to rule on the legality of the fines because the issue was not raised in Mr. France’s original petition. Therefore, it was not properly before the tribunal as a filing fee had not been paid for a second issue and it was not included in the Notice of Hearing.

10. The judge ordered that Don France’s petition be dismissed. The reasoning was that the petition was limited to the single issue of whether the Association had violated CC&R section 2.7, and Mr. France himself acknowledged at the hearing that no such violation by the Association had occurred.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive essay-format response for each, citing specific facts from the case decision to support your arguments.

1. Analyze the concept of estoppel as it applies to this case. Explain why Don France believed the Association was estopped from enforcing the gate requirement, referencing the 2014 approvals, and discuss why the Association disagreed and proceeded with enforcement actions.

2. Discuss the procedural limitations that shaped the outcome of this hearing. How did the specific wording of Mr. France’s initial petition and the rules governing administrative hearings ultimately prevent the judge from considering the central issues of estoppel and the validity of the fines?

3. Examine the conflict between a property owner’s reliance on past approvals and a Property Owners Association’s duty to enforce its CC&Rs. Use the testimony of Joann Van Kirk and Donald Smith to illustrate the differing perspectives and pressures that led to this dispute.

4. Trace the timeline of events from Mr. France’s 2014 application to the 2020 hearing. Detail the key actions taken by Mr. France, the Association’s Architectural Review Committee, the Association’s Board, and the City of Mesa, and explain how their interactions created the legal conflict.

5. Evaluate the standard of proof required in this case, the “preponderance of the evidence.” Although the case was dismissed on a procedural issue, discuss which party presented a more convincing case regarding the underlying dispute over the RV gate, and why.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official (Thomas Shedden in this case) who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders.

Architectural Review Committee (ARC)

A committee within the Property Owners Association responsible for reviewing and approving applications for property improvements, such as Mr. France’s RV port in 2014.

Burden of Proof

The responsibility of a party in a legal case to prove their allegations. In this matter, Mr. France bore the burden of proof to show the Association violated its CC&Rs.

Covenants, Conditions, and Restrictions. These are the governing community documents that set rules for property use, such as section 2.7 which requires a six-foot gate for RV storage.

Conclusions of Law

The section of the judge’s decision that applies legal principles and statutes to the established facts of the case to reach a final ruling.

Estoppel

A legal principle asserted by Mr. France arguing that the Association should be prevented from enforcing a rule (the gate requirement) against him because of its prior action (approving his structure without a gate in 2014).

Findings of Fact

A formal, numbered list of facts in the judge’s decision that are established by the evidence and testimony presented during the hearing.

Notice of Violation (NOV)

A formal notice issued by the Association or the City of Mesa to a property owner informing them that they are in violation of a specific rule or code.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Don France is the Petitioner.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as evidence with “the most convincing force” that is sufficient to incline an impartial mind to one side of an issue over the other.

Respondent

The party against whom a petition is filed. In this case, the Mesa East Property Owners Association is the Respondent.

Select all sources

823714.pdf

No emoji found

20F-H2020056-REL

1 source

The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings concerning the case of Don France versus the Mesa East Property Owners Association. The document details a dispute where Petitioner Don France alleged that the Respondent Association violated a community covenant regarding the storage of recreational vehicles (RVs), specifically CC&R section 2.7, which requires RVs to be stored behind a six-foot gate. Although Mr. France initially brought the petition alleging the Association violated the rule, he ultimately argued that the Association was estopped from enforcing the rule against him due to past approval of his RV structure without a gate. The decision includes a summary of the Findings of Fact related to Mr. France’s structure, the Association’s attempts to enforce the gate requirement against him and other residents, and the resulting fines he incurred before installing a gate to comply with a separate City of Mesa Notice of Violation. Ultimately, the Administrative Law Judge determined that Mr. France failed to meet the burden of proof to show the Association violated the CC&Rs, and his petition was dismissed because he acknowledged the Association was not actually in violation of section 2.7.

What were the legal and factual grounds for the case’s dismissal?

How did the Association’s past actions relate to the estoppel claim?

What was the core conflict between the homeowner, HOA, and city codes?

Case Participants

Petitioner Side

Don France (petitioner)
Appeared on his own behalf and testified
Joann Van Kirk (witness)
Testified for Petitioner; was chairperson of Architectural Review Committee ('ARC') in 2014

Respondent Side

B. Austin Bailio (HOA attorney)
Maxwell & Morgan, P.C.
Attorney for Respondent Mesa East Property Owners Association
Michael Estey (witness)
Testified for Respondent
Donald Smith (witness)
Testified for Respondent

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Judy Lowe (commissioner)
Arizona Department of Real Estate

Debra K Morin v. Solera Chandler Homeowners’ Association, Inc.

Posted on August 19, 2020 by [email protected]

Case Summary

Case ID	20F-H2020051-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2021-01-08
Administrative Law Judge	Kay Abramsohn
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Debra K. Morin	Counsel	—
Respondent	Solera Chandler Homeowners' Association, Inc.	Counsel	Lydia A. Perce Linsmeier, Esq.

Alleged Violations

CC&R Article 7, Section 7.1

Outcome Summary

The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.

Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.

Key Issues & Findings

Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times

Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.

Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116

Analytics Highlights

Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge

Additional Citations:

A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116

Video Overview

Audio Overview

Decision Documents

20F-H2020051-REL Decision – 816310.pdf

Uploaded 2026-04-24T11:26:18 (199.6 KB)

20F-H2020051-REL Decision – 847175.pdf

Uploaded 2026-04-24T11:26:21 (246.5 KB)

Briefing Document: Morin v. Solera Chandler Homeowners’ Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.

The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.

Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.

——————————————————————————–

I. Case Background and Procedural History

The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).

A. Initial Petition

On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).

• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.

• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.

B. Procedural Developments

• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.

• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.

• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.

• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.

• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.

——————————————————————————–

II. Core Arguments of the Parties

The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.

A. Petitioner’s Position (Debra K. Morin)

Ms. Morin’s case was built on the principle of equal application of maintenance standards.

• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).

• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.

• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:

◦ Uncontrolled weeds in granite rock locations

◦ Poor exterior condition of the Community Center

◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing

◦ Water pooling and intrusion issues

◦ Exposed landscaping lights and irrigation lines

◦ Unremoved tree stumps

B. Respondent’s Position (Solera HOA)

Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.

• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.

• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”

• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.

——————————————————————————–

III. Analysis and Key Findings of the Administrative Law Judge

The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.

A. The “Sole Judge” Clause and Board Authority

The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.

• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.

• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”

• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.

B. Rejection of the “Equal Standard” Argument

The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.

• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”

• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.

C. Evaluation of Evidence and Burden of Proof

• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”

• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”

• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.

D. Jurisdictional Limitations

The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.

• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”

• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.

——————————————————————————–

IV. Final Order and Conclusion

Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.

• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.

• Order:

◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.

◦ The order was issued on January 8, 2021.

◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.

Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.

This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.

Short-Answer Quiz

Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.

1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?

2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?

3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?

4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?

5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?

6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?

7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?

8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?

9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?

10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?

——————————————————————————–

Answer Key

1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.

2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.

3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.

4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.

5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.

6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.

7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.

8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.

9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.

10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.

——————————————————————————–

Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.

Areas of Association Responsibility (AREAS)

The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.

Articles of Incorporation

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.

By-Laws

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.

CC&Rs (Declaration of Covenants, Conditions, and Restrictions)

A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.

Maintenance Standard

Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”

Motion to Dismiss

A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.

Petitioner

The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.

Preponderance of the Evidence

The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Premier Management Company (Premier)

The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.

Project Documents

Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.

Respondent

The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.

R&Rs (Rules and Regulations)

One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.

Tribunal

A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.

🧑‍⚖️

20F-H2020051-REL-RHG

1 source

This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.

Case Participants

Petitioner Side

Debra K. Morin (petitioner)
Represented herself

Respondent Side

Lydia A. Perce Linsmeier (HOA attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Represented Solera Chandler Homeowners' Association
Denise Frazier (general manager/witness)
Premier Management Company / Solera Chandler Homeowners' Association
Solera's onsite general manager who testified

Neutral Parties

Kay Abramsohn (ALJ)
Office of Administrative Hearings
Administrative Law Judge for both original and rehearing decisions
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Commissioner of the Arizona Department of Real Estate
Felicia Del Sol (administrative)
Transmitted the original August 19, 2020 Decision

John R. Ashley v. Rancho Reyes II Community Association, Inc.

Posted on August 11, 2020 by [email protected]

Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID	20F-H2019032-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2020-08-11
Administrative Law Judge	Thomas Shedden
Outcome	The ALJ dismissed the petition upon rehearing, finding that the Petitioner failed to prove by a preponderance of the evidence that Respondent violated Bylaws Article III, Section 4, because that provision is unambiguous and applies only to member quorums, not requiring a quorum of Board members at membership meetings.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John R Ashley	Counsel	—
Respondent	Rancho Reyes II Community Association, Inc.	Counsel	Wendy Erlich

Alleged Violations

Bylaws Article III, Section 4

Outcome Summary

The ALJ dismissed the petition upon rehearing, finding that the Petitioner failed to prove by a preponderance of the evidence that Respondent violated Bylaws Article III, Section 4, because that provision is unambiguous and applies only to member quorums, not requiring a quorum of Board members at membership meetings.

Why this result: Petitioner failed to carry the burden of proof. The Bylaws were interpreted as a contract whose unambiguous terms (Article III, Section 4) do not support the Petitioner's claim regarding Board quorum at member meetings.

Key Issues & Findings

Failure to establish a quorum of Board members at membership meetings

Petitioner alleged Respondent violated Bylaws Article III, Section 4 by conducting member-meetings without a quorum of Board members present. The ALJ concluded the cited Bylaw provision was unambiguous and imposed no such requirement, only defining a quorum as 1/10th of the membership votes for action at a member meeting.

Orders: The Administrative Law Judge dismissed the petition following the rehearing, concluding the Petitioner had not shown the Respondent violated the cited Bylaws provision.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (1988 App.)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA, Bylaws, Quorum, Contract Interpretation, Dismissal, Rehearing

Additional Citations:

McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (1988 App.)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
Ariz. Rev. Stat. § 32-2199.01

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

20F-H2019032-REL-RHG Decision – 814023.pdf

Uploaded 2026-01-23T17:31:02 (99.2 KB)

20F-H2019032-REL-RHG Decision – ../20F-H2019032-REL/772795.pdf

Uploaded 2026-01-23T17:31:06 (42.4 KB)

20F-H2019032-REL-RHG Decision – ../20F-H2019032-REL/772833.pdf

Uploaded 2026-01-23T17:31:09 (67.3 KB)

Briefing Document: Ashley v. Rancho Reyes II Community Association, Inc.

Executive Summary

This document synthesizes the key facts, arguments, and legal rulings in the administrative case of John R Ashley v. Rancho Reyes II Community Association, Inc. (No. 20F-H2019032-REL). The central issue revolved around Petitioner John R. Ashley’s allegation that the Respondent, his homeowners’ association, violated its bylaws by conducting member meetings without a quorum of its Board of Directors present.

The Administrative Law Judge (ALJ) ultimately dismissed the petition, a decision that was upheld after a full rehearing. The core of the ruling rested on a plain-text interpretation of the association’s bylaws. The ALJ found that Bylaws Article III, Section 4 unambiguously defines a quorum for member meetings as one-tenth (1/10th) of the general membership, with no requirement for a Board quorum. The separate requirements for a Board quorum are distinctly located in Article VI, which governs meetings of the Directors.

The Petitioner’s arguments—that the Board constituted a separate “class of member” requiring a quorum and that Robert’s Rules of Order should apply—were found to be unsubstantiated by evidence. The ALJ concluded that the Petitioner failed to meet his burden of proof, and the Respondent association was deemed the prevailing party in the matter.

——————————————————————————–

Case Background and Procedural History

Parties Involved

Entity / Individual

Petitioner

John R. Ashley

Respondent

Rancho Reyes II Community Association, Inc.

Attorney for Respondent

Wendy Erlich, Esq.

Tribunal

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Thomas Shedden, Administrative Law Judge

Oversight Agency

Arizona Department of Real Estate

Core Allegation

The petitioner, John R. Ashley, filed a single-issue petition on or around December 9, 2019. He alleged that the Rancho Reyes II Community Association, Inc. violated its bylaws, specifically Article III, Section 4, by failing to establish a quorum of its Board of Directors at the annual membership meetings held in December 2017 and December 2018.

Procedural Timeline

• c. December 9, 2019: John R. Ashley files a petition with the Arizona Department of Real Estate.

• February 10, 2020: The Respondent files a Motion to Dismiss Petition, arguing that the cited bylaw does not require a Board quorum at member meetings.

• February 18, 2020: Mr. Ashley files a notice confirming his single issue is the alleged violation of Article III, Section 4.

• March 3, 2020: The ALJ, Thomas Shedden, grants the Respondent’s Motion to Dismiss. The hearing scheduled for March 16, 2020 is vacated.

• March 10, 2020: Mr. Ashley files a Request for Rehearing with the Department of Real Estate.

• March 27, 2020: The Department of Real Estate issues an Order Granting Rehearing.

• July 28, 2020: A full rehearing is conducted at the OAH. Mr. Ashley testifies on his own behalf; the Respondent is represented by counsel but presents no witnesses.

• August 11, 2020: The ALJ issues a final decision after the rehearing, once again dismissing Mr. Ashley’s petition.

Analysis of the Central Dispute: Bylaw Interpretation

The case hinged entirely on the interpretation of the quorum requirements as defined in the association’s bylaws. The Petitioner and Respondent presented conflicting views on the applicability of these rules to member meetings versus director meetings.

Petitioner’s Position (John R. Ashley)

• Primary Argument: Mr. Ashley asserted that Article III, Section 4 required a quorum of the Board of Directors to be present at all meetings of the general membership.

• “Board Membership Class” Theory: He argued that the Board of Directors constituted a third “class of member” alongside homeowners and the original developers. Under this theory, this “class” would need its own quorum at member meetings. The ALJ found no substantial evidence to support the existence of this class in the bylaws.

• Reliance on Robert’s Rules of Order: Mr. Ashley referenced Robert’s Rules of Order to support his position. However, he presented no evidence to show that these rules were incorporated into the association’s Articles of Incorporation, Declaration, or Bylaws, making them inapplicable under the tribunal’s statutory authority.

Respondent’s Position (Rancho Reyes II Community Association, Inc.)

• Plain Text Interpretation: The Respondent argued that Article III, Section 4 is unambiguous and applies solely to the quorum requirements for the general membership, not the Board of Directors.

• Distinct Quorum Rules: The association contended that the bylaws clearly separate the rules for member meetings (Article III) from the rules for director meetings (Article VI). Article VI, Section 3 explicitly sets the quorum for the transaction of business by the Board of Directors.

Controlling Bylaw Provisions

Article

Pertinent Text / Description

Article III, Section 4

Meetings of Members; Quorum

“The presence at the meeting of Members entitled to cast, or of proxies entitled to cast, one-tenth (1/10th) of the votes of each class of membership will constitute a quorum for any action except as otherwise provided…”

Article VI, Section 3

Meetings of Directors; Quorum

Sets out the quorum requirements specifically for Board of Director meetings, showing that a majority of Directors constitutes a quorum for the transaction of business.

Administrative Law Judge’s Findings and Rulings

The ALJ’s decisions, both in the initial dismissal and the final order after rehearing, were consistent and based on established principles of contract law and the evidence presented.

Initial Dismissal (March 3, 2020)

In the initial order, the ALJ granted the Respondent’s Motion to Dismiss based on a direct reading of the bylaws. The ruling stated:

• The bylaws are a contract between the parties.

• The terms of Article III, Section 4 are unambiguous and contain “no requirement for a quorum of Board members to be present at a meeting of the membership.”

• Because the bylaw does not contain the requirement alleged by Mr. Ashley, a violation could not have occurred.

Rehearing Decision (August 11, 2020)

The rehearing allowed for a more extensive review but ultimately affirmed the initial conclusion. The ALJ made several key Conclusions of Law:

• Burden of Proof: Mr. Ashley, as the petitioner, bore the burden of proving his case by a preponderance of the evidence.

• Bylaws as Contract: Citing legal precedent (McNally v. Sun Lakes Homeowners Ass’n #1, Inc.), the decision reiterated that bylaws function as a binding contract.

• Unambiguous Terms: The tribunal is required to give effect to the unambiguous terms of a contract. Article III, Section 4 was found to be clear and unambiguous in its meaning.

• Lack of Evidence: Mr. Ashley failed to present substantial evidence for his key claims:

◦ He did not show that Robert’s Rules of Order were applicable to the matter.

◦ He did not show that the bylaws included a “Board membership class.”

• Final Conclusion: Because Article III, Section 4 does not require a quorum of Board members at a member meeting, Mr. Ashley failed to prove by a preponderance of the evidence that the Respondent had violated it.

Final Order and Implications

Based on the findings from the rehearing, the Administrative Law Judge issued a final, binding order on August 11, 2020.

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

• Prevailing Party: The Respondent, Rancho Reyes II Community Association, Inc., was deemed the prevailing party in the matter.

• Appeal Rights: The order noted that, as a decision resulting from a rehearing, it is binding on the parties. Any further appeal must be sought through judicial review by filing with the superior court within thirty-five days from the date of service, as prescribed by Arizona Revised Statutes.

Study Guide: Case No. 20F-H2019032-REL

This guide is designed to review the key facts, legal arguments, and procedural history of the administrative case involving John R. Ashley and the Rancho Reyes II Community Association, Inc.

Short-Answer Quiz

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

1. Who were the Petitioner and Respondent in case No. 20F-H2019032-REL, and what was the primary institution hearing the case?

2. What was the central allegation made by John R. Ashley in his initial petition filed on December 9, 2019?

3. According to the provided documents, what did Bylaws Article III, Section 4 actually require to establish a quorum for a meeting of the members?

4. On what grounds did the Respondent, Rancho Reyes II Community Association, Inc., file its Motion to Dismiss?

5. What was the initial outcome of Mr. Ashley’s petition, as decided in the Administrative Law Judge Decision dated March 3, 2020?

6. Upon what legal standard did the Administrative Law Judge state that bylaws should be interpreted, and what two court cases were cited to support this principle?

7. During the rehearing, Mr. Ashley introduced an argument about different “classes of membership.” What was this argument, and why was it rejected?

8. What role did Robert’s Rules of Order play in Mr. Ashley’s arguments, and what was the tribunal’s official position on construing these rules?

9. What is the standard of proof required in this matter, and which party bore the burden of meeting it?

10. What was the final order issued on August 11, 2020, and what was the specified recourse for a party wishing to appeal it?

——————————————————————————–

Answer Key

1. The Petitioner was John R. Ashley, and the Respondent was Rancho Reyes II Community Association, Inc. The case was heard in the State of Arizona’s Office of Administrative Hearings (OAH).

2. Mr. Ashley’s central allegation was that the Respondent violated its own Bylaws, specifically Article III, Section 4, by conducting member meetings in December 2017 and December 2018 without a quorum of Board members present.

3. Bylaws Article III, Section 4 required the presence of members or proxies entitled to cast one-tenth (1/10th) of the votes of each class of membership. It contained no provision requiring a quorum of the Board of Directors to be present at a member meeting.

4. The Respondent filed its Motion to Dismiss on the grounds that the petition should be dismissed because Article III, Section 4 of the Bylaws is unambiguous and does not require a quorum of Board members to be present for a meeting of the members.

5. The Administrative Law Judge granted the Respondent’s Motion to Dismiss in an order dated March 3, 2020. Mr. Ashley’s petition was dismissed, and the hearing scheduled for March 16, 2020, was vacated.

6. The judge stated that the Bylaws are a contract between the parties, and unambiguous terms must be given effect. The cases cited were McNally v. Sun Lakes Homeowners Ass’n #1, Inc. and Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C.

7. Mr. Ashley argued that a “Board membership class” existed and that Article III, Section 4 required a quorum of this class. The argument was rejected because he presented no substantial evidence that the Bylaws included such a class.

8. Mr. Ashley argued that Robert’s Rules of Order supported his position. The tribunal determined that construing these rules was not within the scope of its authority and noted that Mr. Ashley failed to provide evidence showing the rules were part of the association’s governing documents.

9. The standard of proof was a “preponderance of the evidence.” The Petitioner, Mr. Ashley, bore the burden of proof on all issues in the matter.

10. The final order, issued after the rehearing, was that Mr. Ashley’s petition was dismissed and the Respondent was deemed the prevailing party. A party wishing to appeal the order was required to seek judicial review with the superior court within thirty-five days from the date the order was served.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper, synthesized understanding of the case. Formulate comprehensive responses based on the details in the source documents.

1. Discuss the legal reasoning used by the Administrative Law Judge to dismiss the petition, referencing the specific bylaws (Article III, Section 4 and Article VI, Section 3) and legal precedents cited in the decision.

2. Analyze the evolution of John R. Ashley’s arguments from his initial petition to the rehearing. How did his claims change, and why were they ultimately unsuccessful according to the final decision?

3. Explain the distinction between a quorum for a “Meeting of Members” and a “Meeting of Directors” as outlined in the Rancho Reyes II Community Association’s Bylaws. How was this distinction central to the case’s outcome?

4. Describe the procedural timeline of the case from the initial filing on December 9, 2019, to the final order after rehearing on August 11, 2020. What were the key procedural steps and decisions made by the Office of Administrative Hearings and the Department of Real Estate?

5. Based on the legal standards cited in the decision, explain the concepts of “burden of proof” and “preponderance of the evidence.” How did these standards apply to Mr. Ashley’s case and contribute to its dismissal?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, such as Thomas Shedden in this case.

Burden of Proof

The obligation of a party in a legal case to provide sufficient evidence to support their claim. In this matter, the burden of proof was on the Petitioner, John R. Ashley.

Bylaws

A set of rules governing the internal management of an organization, such as a homeowners association. In this case, they are treated as a binding contract between the association and its members.

Department of Real Estate

The Arizona state agency that has authority over planned communities and homeowner associations, and which granted Mr. Ashley’s request for a rehearing.

Judicial Review

The process by which a party can appeal a decision from an administrative agency (like the OAH) to a court of law (the superior court).

Motion to Dismiss

A formal request filed by a party asking for a case to be dismissed. In this matter, the Respondent filed one arguing that the petitioner’s claim had no legal basis under the Bylaws.

Office of Administrative Hearings (OAH)

The state agency that conducts impartial hearings for other state agencies. The OAH is located at 1740 West Adams Street, Phoenix, Arizona.

Petitioner

The party who initiates a legal action or petition. In this case, John R. Ashley.

Preponderance of the Evidence

The standard of proof in this case, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Prevailing Party

The party who wins a legal dispute. The Respondent was deemed the prevailing party in the final order.

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.

Rehearing

A second hearing of a case, granted in this matter by the Department of Real Estate after the initial petition was dismissed.

Respondent

The party against whom a petition is filed. In this case, Rancho Reyes II Community Association, Inc.

4 Surprising Legal Lessons from One Man’s Fight With His Homeowners Association

Introduction: The Rules We All Live By

If you live in a planned community, condominium, or cooperative, you live by a set of rules. For the most part, we assume these governing documents—like the bylaws of a Homeowners Association (HOA)—are straightforward. We pay our dues, keep our lawns tidy, and expect the association to manage the common areas.

But what happens when there’s a disagreement over what those rules actually mean? Disputes can arise from simple misunderstandings, and the consequences can be more complex than anyone anticipates.

A close look at a real administrative case, the dispute between John R. Ashley and the Rancho Reyes II Community Association, reveals some surprisingly impactful lessons about how community rules are interpreted in a legal setting. His fight provides a playbook of critical legal principles, revealing how the literal text of community documents can override common assumptions and even procedural standards.

The Takeaways

Here are the core lessons that emerged from the Administrative Law Judge’s decisions in the case.

The most fundamental principle guiding the judge’s decision was simple: an HOA’s bylaws are not just a set of community guidelines. They are a formal, legally binding contract between the association and its members. This concept was directly referenced from a previous case, McNally v. Sun Lakes Homeowners Ass’n #1, Inc.

This contractual nature means that the exact terms must be followed to the letter by both parties—the homeowners and the association’s board. This means that when a document’s language is unambiguous, a court will not consider outside evidence or ‘common sense’ understandings to alter its meaning. The words on the page are all that matters. The judge’s decision underscored this point with a powerful statement:

and the parties are required to comply with the terms of that contract.

A core legal principle is that when the terms of a contract are clear and unambiguous, they must be given their plain and ordinary meaning. You cannot add requirements that simply aren’t there.

Mr. Ashley’s entire case rested on his belief that a quorum of the Board of Directors was required to be present at member meetings. However, the Administrative Law Judge dismissed this argument by pointing directly to the text of the bylaws. Article III, Section 4, which governs member meetings, only required a quorum of “one-tenth (1/10th) of the votes of each class of membership.”

A separate section, Article VI, set the quorum requirements for Board meetings. The judge noted this clear distinction, stating that the tribunal is required to “give effect to those unambiguous terms.” This demonstrates a crucial principle of contract law: the structure of the document is part of its meaning. A requirement located under the ‘Meetings of Directors’ article cannot be unilaterally applied to the ‘Meetings of Members’ article.

In his petition, Mr. Ashley referenced Robert’s Rules of Order to support his position on meeting procedures. Many organizations use this manual as a standard for conducting business, and it’s often assumed to be a universal default.

However, the judge found this argument irrelevant. Why? Because Mr. Ashley “presented no evidence to show that Roberts Rules are part of the ‘Articles of Incorporation, the Declaration, or [the] Bylaws.'” The judge also noted that interpreting such external rules was not within the tribunal’s authority. This provides a critical lesson: external standards, no matter how common, only apply if an organization’s own governing documents explicitly adopt them.

Just as external rules can’t be imported without being explicitly adopted, internal rules cannot be invented out of thin air, as Mr. Ashley’s next argument demonstrated.

During a rehearing, Mr. Ashley presented a creative but ultimately unsuccessful argument. He claimed that the Board of Directors constituted a “third class of member” and, therefore, required its own separate quorum at member meetings according to the language in Article III, Section 4.

The Administrative Law Judge swiftly rejected this novel interpretation. The decision concluded that Mr. Ashley “did not present substantial evidence that the Bylaws include a ‘Board membership class.'” This final point reinforces the central theme: arguments must be grounded in the literal text of the contract (the bylaws). This underscores the ultimate lesson: the burden of proof was on Mr. Ashley to show his interpretations were supported by the text. His failure to do so, both in referencing Robert’s Rules and in proposing a new ‘Board membership class,’ was the foundation of the judge’s decision.

Conclusion: Read the Fine Print

The dismissal of John R. Ashley’s petition is a stark reminder for every homeowner living under association rules. In the world of community governance, good intentions, common practices, and creative interpretations take a back seat. Precision, clarity, and—above all—the literal text of the governing documents are paramount.

When was the last time you read the specific documents that govern your own community?

Case Participants

Petitioner Side

John R Ashley (petitioner)
Appeared on his own behalf

Respondent Side

Wendy Erlich (respondent attorney)
Wendy Erlich Attorney PLLC
Represented Rancho Reyes II Community Association, Inc.

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Judy Lowe (commissioner)
Arizona Department of Real Estate
LDettorre (ADRE staff recipient)
Arizona Department of Real Estate
Recipient of final order transmission
AHansen (ADRE staff recipient)
Arizona Department of Real Estate
Recipient of final order transmission
djones (ADRE staff recipient)
Arizona Department of Real Estate
Recipient of final order transmission
DGardner (ADRE staff recipient)
Arizona Department of Real Estate
Recipient of final order transmission
ncano (ADRE staff recipient)
Arizona Department of Real Estate
Recipient of final order transmission

Other Participants

A. Leverette (clerical staff)
Signed document transmission in initial order

Werner A Reis v. Canyon Mesa Townhouse Association

Posted on July 14, 2020 by [email protected]

Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID	20F-H2019026-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2020-07-14
Administrative Law Judge	Jenna Clark
Outcome	The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Werner A Reis	Counsel	—
Respondent	Canyon Mesa Townhouse Association	Counsel	Edward O’Brien, Esq.

Alleged Violations

CC&Rs Article III, section 1

Outcome Summary

The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.

Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.

Key Issues & Findings

Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.

Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.

Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. §§ 32-2199(2)
ARIZ. REV. STAT. §§ 32-2199.01(A)
ARIZ. REV. STAT. §§ 32-2199.01(D)
ARIZ. REV. STAT. §§ 32-2199.02
ARIZ. REV. STAT. § 33-1243
ARIZ. REV. STAT. §§ 41-1092 et seq.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
ARIZ. REV. STAT. §§ 41-1092.04
ARIZ. REV. STAT. §§ 41-1092.05(D)
ARIZ. REV. STAT. §§ 41-1061(A)
ARIZ. REV. STAT. § 41-1092.08(H)
ARIZ. REV. STAT. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

20F-H2019026-REL-RHG Decision – 792741.pdf

Uploaded 2026-01-23T17:30:49 (47.0 KB)

20F-H2019026-REL-RHG Decision – 806920.pdf

Uploaded 2026-01-23T17:30:53 (175.9 KB)

20F-H2019026-REL-RHG Decision – ../20F-H2019026-REL/770924.pdf

Uploaded 2026-01-23T17:30:56 (153.6 KB)

Briefing Document: Reis v. Canyon Mesa Townhouse Association

Executive Summary

This document synthesizes the legal dispute between homeowner Werner A. Reis (Petitioner) and the Canyon Mesa Townhouse Association (Respondent) concerning the modification of a common area tennis court. The core of the dispute, adjudicated under case numbers 20F-H2019026-REL and 20F-H2019026-REL-RHG, was the Association’s decision in June 2019 to paint pickleball lines on one of its two community tennis courts. The Petitioner alleged this action violated Article III, section 1 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), infringing upon his nonexclusive perpetual easement of use and enjoyment. The Association contended that its Board of Directors acted within its authority, as granted by the CC&Rs, to manage, maintain, and improve common areas for the benefit of all members.

Following an evidentiary hearing and a subsequent rehearing, Administrative Law Judge Jenna Clark ruled decisively in favor of the Association. The Judge found that the Petitioner failed to meet his burden of proof by a preponderance of the evidence. Key findings established that the Board was fully authorized to make the modification without a member vote, that tennis play was not restricted, and that the Petitioner’s easement rights were not violated. The Petitioner’s arguments, based on a potential future conflict rather than an actual experienced impediment, were deemed “unfounded” and “without merit.” The final order, issued on July 14, 2020, denied the petition, affirming the Association’s right to manage the recreational facilities in this manner.

——————————————————————————–

I. Case Overview

This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).

Case Detail

Information

Case Numbers

20F-H2019026-REL, 20F-H2019026-REL-RHG (Rehearing)

Petitioner

Werner A. Reis

Respondent

Canyon Mesa Townhouse Association

Adjudicator

Administrative Law Judge (ALJ) Jenna Clark

Core Issue

Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.

——————————————————————————–

II. Procedural History

The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.

• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.

• December 4, 2019: The Association files its ANSWER, denying all complaint items.

• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.

• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.

• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.

• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.

• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.

• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.

• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.

——————————————————————————–

III. Analysis of the Dispute

The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.

Petitioner’s Position (Werner A. Reis)

The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.

• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”

• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”

• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”

• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.

• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”

• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.

Respondent’s Position (Canyon Mesa Townhouse Association)

The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.

• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.

• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.

• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.

• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.

——————————————————————————–

IV. Summary of Evidence and Testimony

Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.

Testimony for the Association (Charles Mitchell & Arland Averell)

• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.

• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.

• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.

• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.

Testimony of the Petitioner (Werner A. Reis)

• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.

• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”

• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.

——————————————————————————–

V. Administrative Law Judge’s Findings and Final Order

The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.

Conclusions of Law

• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.

• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”

• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.

• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.

• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”

Final Disposition

IT IS ORDERED that Petitioner’s petition is denied.

The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.

Study Guide: Reis vs. Canyon Mesa Townhouse Association

Short-Answer Quiz

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

1. What was the specific allegation made by the Petitioner, Werner A. Reis, in his petition filed on November 18, 2019?

2. On what grounds did the Canyon Mesa Townhouse Association’s Board of Directors justify its decision to add pickleball lines to a tennis court?

3. According to the testimony of Arland Averell, what prompted the Board to reestablish a pickleball court in April 2019, and what was a prior experience with a pickleball court?

4. Describe the central, or “crux,” of the Petitioner’s complaint as summarized in the hearing evidence.

5. What key admissions did the Petitioner make during his testimony regarding his own tennis activity and his personal experience with the alleged conflict?

6. According to Director Charles Mitchell’s testimony, what is the physical setup of the nets on the courts, and how does this differ between tennis and pickleball?

7. What was the legal standard of proof the Petitioner was required to meet, and how is that standard defined in the legal documents?

8. What was the outcome of the initial evidentiary hearing held on January 31, 2020, and on what basis did the Administrative Law Judge reach this conclusion?

9. Describe the procedural change that occurred for the rehearing after the parties’ prehearing conference on May 20, 2020.

10. What action, or lack thereof, by the Petitioner on June 24, 2020, contributed to the final ruling in the rehearing?

——————————————————————————–

Answer Key

1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.

2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.

3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.

4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.

5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.

6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.

7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.

8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.

9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.

10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.

1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?

2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.

3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.

4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.

5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.

ARIZ. REV. STAT.

Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.

Association

The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.

Board of Directors (Board)

The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.

Common Areas

Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.

Easement of use and enjoyment

A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.

OAH (Office of Administrative Hearings)

An independent state agency to which the Department refers cases for evidentiary hearings.

Petitioner

The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.

Preponderance of the evidence

The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”

Respondent

The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.

Snowbird

A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.

5 Surprising Lessons from a Bizarre HOA Lawsuit Over a Pickleball Court

Introduction: The Battle for the Tennis Court

Disputes with a homeowner association (HOA) are a common feature of suburban life, often revolving around landscaping, paint colors, or parking. But when you combine the rigid world of HOA rules with the explosive popularity of pickleball, you get a conflict that is uniquely modern. In a real-life legal case from Sedona, Arizona, one homeowner took his HOA to court over the decision to add pickleball lines to one of the community’s two tennis courts.

What might seem like a minor neighborhood squabble became a formal legal challenge, complete with hearings, testimony, and an official judicial decision. The court documents from this case offer a surprisingly revealing look into community rules, personal grievances, and the peculiar nature of legal battles. More importantly, they reveal several counter-intuitive lessons for anyone living in a planned community.

——————————————————————————–

1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)

The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”

This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:

Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.

The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.

2. Your HOA’s Governing Documents Are a Legally Binding Contract

Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.

In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.

The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.

3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests

The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”

But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.

4. An “Infringement” Requires an Actual Impediment

The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:

“Members have the right to play tennis unless pickleball is in play.”

However, the facts presented in court systematically dismantled this argument. The evidence showed:

• One of the two courts remained exclusively for tennis at all times.

• Both courts were still available for tennis on a first-come, first-served basis.

• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.

• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”

The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.

5. If You Demand a Rehearing, You Should Probably Show Up with an Argument

In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.

To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:

OAH did not receive a closing argument from Petitioner.

The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.

——————————————————————————–

Conclusion: The Court of Community Opinion

This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.

As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?

Case Participants

Petitioner Side

Werner A Reis (petitioner)
Appeared on his own behalf

Respondent Side

Edward O’Brien (attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Counsel for Canyon Mesa Townhouse Association
Mark Sall (attorney)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
Charles Mitchell (board member, witness)
Canyon Mesa Townhouse Association
Current Director of the Association's Board
Arland Averell (board member, witness)
Canyon Mesa Townhouse Association
Served on the Board for the past twenty years

Neutral Parties

Jenna Clark (ALJ)
OAH
Judy Lowe (commissioner)
ADRE
Commissioner of the Arizona Department of Real Estate
DGardner (department contact)
ADRE
Electronic contact for ADRE
c. serrano (staff)
OAH
Administrative staff/Clerk noted on document transmission

Mary J Bartle vs. Saguaro West Owner’s Association

Posted on January 30, 2020 by [email protected]

Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID	19F-H1919059-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2020-01-30
Administrative Law Judge	Thomas Shedden
Outcome	The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Mary J Bartle	Counsel	—
Respondent	Saguaro West Owner's Association	Counsel	Nicole Payne, Esq.

Alleged Violations

Bylaws Article VIII, section 8(d)

Outcome Summary

The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.

Why this result: Petitioner failed to show by a preponderance of the evidence that the transactions violated the specific duties of the treasurer set out in Bylaws Article VIII, section 8(d).

Key Issues & Findings

Alleged violation of Treasurer duties regarding fund transactions

The petitioner alleged the Association violated Bylaws Article VIII, section 8(d) by withdrawing and redepositing $49,000.50 from the operating account. The ALJ concluded that Petitioner failed to show by a preponderance of the evidence that these transactions violated the specific duties of the treasurer set forth in that section.

Orders: Petitioner Mary J. Bartle’s petition is dismissed and Respondent is deemed the prevailing party in this matter.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section and title 12, chapter 7, article 6
ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: HOA, Bylaws, Treasurer Duties, Dismissal, Burden of Proof, Rehearing

Additional Citations:

ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section and title 12, chapter 7, article 6
ARIZ. REV. STAT. section 12-904(A)

Video Overview

Audio Overview

Decision Documents

19F-H1919059-REL-RHG Decision – 767041.pdf

Uploaded 2026-01-23T17:29:24 (94.6 KB)

Briefing Document: Bartle vs. Saguaro West Owner’s Association (Case No. 19F-H1919059-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the matter of Mary J. Bartle vs. Saguaro West Owner’s Association. The final order, issued on January 30, 2020, dismissed the petition brought by Ms. Bartle. The core of the case revolved around a financial transaction where $49,000.50 was withdrawn from the Association’s operating account on October 22, 2018, and redeposited on November 30, 2018.

The petitioner, Ms. Bartle, alleged this transaction violated a specific provision of the Association’s bylaws—Article VIII, section 8(d)—which outlines the duties of the Treasurer. Despite two hearings, the Administrative Law Judge consistently concluded that Ms. Bartle failed to meet her burden of proof. The central finding was that while evidence suggested the transaction “may have been in violation of the law or otherwise improper,” the petitioner did not demonstrate, by a preponderance of the evidence, how this transaction specifically violated any of the enumerated duties of the Treasurer as set forth in the cited bylaw. The decision underscores a critical legal distinction between a potentially improper act and a proven violation of the specific bylaw under which the complaint was filed.

Case Overview

Case Name

Mary J. Bartle, Petitioner, vs. Saguaro West Owner’s Association, Respondent

Case Number

19F-H1919059-REL-RHG

Jurisdiction

Arizona Department of Real Estate, Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Thomas Shedden

Petitioner

Mary J. Bartle (representing herself)

Respondent

Saguaro West Owner’s Association (represented by Nicole Payne, Esq.)

Rehearing Date

January 14, 2020

Final Decision Date

January 30, 2020

Procedural History and Core Allegation

The case proceeded through an initial hearing and a subsequent rehearing, following a specific timeline of events:

• April 22, 2019: Ms. Bartle filed the initial petition with the Arizona Department of Real Estate.

• August 29, 2019: The first hearing was held. At the outset, a discussion was held to narrow the scope of the hearing. Ms. Bartle agreed to limit her petition to a single issue.

• The Single Issue: Whether the Association violated Bylaws Article VIII, section 8(d) through a withdrawal of $49,000.50 on October 22, 2018, and a redeposit of the same amount on November 30, 2018.

• September 18, 2019: The initial Administrative Law Judge Decision was issued, dismissing Ms. Bartle’s petition.

• October 23, 2019: Ms. Bartle filed a request for a rehearing, asserting an error in the admission of evidence.

• November 18, 2019: The Department of Real Estate granted the request for a rehearing.

• January 14, 2020: The rehearing was convened. Ms. Bartle testified, while the Respondent presented no witnesses.

• January 30, 2020: The final Administrative Law Judge Decision was issued, reaffirming the dismissal of the petition.

At the rehearing, Ms. Bartle testified “to the effect that laws must have been violated by the withdrawal and redepositing of the $49,000.50 without the Association’s members being provided any notice of these transactions.”

Analysis of Bylaw and Judicial Findings

Bylaw Article VIII, Section 8(d): The Treasurer’s Duties

The entirety of the petitioner’s case rested on proving a violation of the specific duties outlined for the Treasurer in the Association’s bylaws. The text of the bylaw is as follows:

The Treasurer shall receive and deposit in the Association’s bank accounts all monies received by the Association and shall disburse such funds as directed by resolution [of] the Board of Directors; shall properly prepare and sign all checks before presenting them to be co-signed; keep proper books of account; cause an annual audit of the Association’s books to be made by a public accountant at the completion of each fiscal year; and shall prepare an annual budget to be presented to the membership at the annual meeting; to cause all Federal and State reports to be prepared; and shall prepare all monthly statements of finance for the Board of Directors.

Key Judicial Findings and Conclusions

The Administrative Law Judge’s decision hinged on the petitioner’s failure to connect the disputed financial transaction to a specific violation of the duties listed above. The judge made a clear distinction between the potential impropriety of the transaction and the narrow scope of the legal claim.

• Initial Hearing Conclusion: The decision from the first hearing, which the judge took notice of in the rehearing, established the core finding:

• Rehearing Conclusion: The final decision after the rehearing reinforced this exact point, stating:

Ultimately, the case was dismissed because Ms. Bartle did not meet the legal standard required to prove her specific claim.

Legal Framework and Final Order

Applicable Legal Standards

The decision was grounded in several key legal principles cited by the Administrative Law Judge:

• Jurisdiction: The Arizona Department of Real Estate possesses authority over the matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

• Burden of Proof: Ms. Bartle, as the petitioner, bore the burden of proof on all issues.

• Standard of Proof: The standard was a “preponderance of the evidence,” defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Contractual Nature of Bylaws: Citing McNally v. Sun Lakes Homeowners Ass’n #1, Inc., the decision notes that “The Bylaws are a contract between the parties and the parties are required to comply with its terms.”

Final Order and Implications

Based on the failure to meet the burden of proof, the Administrative Law Judge issued a binding order with the following key points:

1. Dismissal: Petitioner Mary J. Bartle’s petition is dismissed.

2. Prevailing Party: The Respondent, Saguaro West Owner’s Association, is deemed the prevailing party.

3. Appeal Rights: A party wishing to appeal the order must seek judicial review with the superior court within thirty-five days from the date the order was served, as prescribed by ARIZ. REV. STAT. sections 12-904(A) and Title 12, Chapter 7, Article 6.

Study Guide: Bartle v. Saguaro West Owner’s Association

This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1919059-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the legal matter.

——————————————————————————–

Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the case document.

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

2. What specific financial transaction was the central subject of the petitioner’s complaint?

3. Which specific article and section of the Association’s Bylaws did the petitioner claim was violated?

4. What was the legal standard of proof that the petitioner was required to meet, and who had the burden of proof?

5. On what grounds did Ms. Bartle file her request for a rehearing after the initial decision?

6. According to the judge’s decision, what was the key failure in the petitioner’s argument regarding the financial transaction?

7. What was the final order issued by the Administrative Law Judge on January 30, 2020?

8. Although the judge dismissed the petition, what did the decision state about the nature of the financial transactions?

9. Which government department granted the request for a rehearing and has authority over this type of matter?

10. What options does a party have if they wish to appeal the final administrative law judge order?

——————————————————————————–

Answer Key

1. The primary parties were the Petitioner, Mary J. Bartle, and the Respondent, Saguaro West Owner’s Association. Ms. Bartle brought the petition against the Association, alleging a violation of its bylaws.

2. The central subject was the withdrawal of $49,000.50 from the Association’s operating account on October 22, 2018. The same amount was subsequently redeposited into the account on November 30, 2018.

3. The petitioner claimed the Association violated Bylaws Article VIII, section 8(d). This section outlines the specific duties and responsibilities of the Association’s Treasurer.

4. The standard of proof was a “preponderance of the evidence.” The burden of proof was on the petitioner, Ms. Bartle, to demonstrate that the Association had violated the bylaw.

5. Ms. Bartle filed her Rehearing Request on the grounds that there was an error in the admission of evidence. She specifically referenced documents dated July 5, August 6, and September 13, 2019, in her request.

6. The key failure was that Ms. Bartle did not show by a preponderance of the evidence that the withdrawal and redeposit specifically violated any of the treasurer’s duties as explicitly listed in Bylaws Article VIII, section 8(d). Her claim was too narrow for the evidence she presented.

7. The final order was that Petitioner Mary J. Bartle’s petition be dismissed. The Respondent, Saguaro West Owner’s Association, was deemed to be the prevailing party in the matter.

8. The decision stated that there was evidence to suggest that the withdrawal and redeposit of the $49,000.50 “may have been in violation of the law or otherwise improper.” However, this was not sufficient to prove a violation of the specific bylaw in question.

9. The Arizona Department of Real Estate granted the rehearing on November 18, 2019. This department has authority over the matter as established by ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

10. A party wishing to appeal the order must seek judicial review as prescribed by Arizona Revised Statutes. The appeal must be filed with the superior court within thirty-five days from the date the order was served upon the parties.

——————————————————————————–

Essay Questions

Instructions: Consider the following questions for a deeper analysis of the case. Formulate a comprehensive response based solely on the information provided in the source document.

1. Analyze the concept of “preponderance of the evidence” as defined in the decision. Explain why Mary J. Bartle failed to meet this standard, despite the judge’s acknowledgment that the transaction may have been “improper” or in “violation of the law.”

2. Discuss the procedural significance of limiting the hearing to the single issue of Bylaws Article VIII, section 8(d). How might the case’s outcome have differed if the scope of the hearing had been broader?

3. Trace the complete timeline of the case from the initial petition filing in April 2019 to the final order in January 2020. What do the key events and dates reveal about the process of administrative hearings and rehearings?

4. Based on the full text of Bylaws Article VIII, section 8(d), what specific types of evidence would the petitioner have needed to present to successfully prove that the treasurer’s duties were violated by the $49,000.50 transaction?

5. Evaluate the distinction made by the Administrative Law Judge between a transaction that is potentially illegal or improper and a transaction that specifically violates the duties enumerated in Bylaws Article VIII, section 8(d). Why is this distinction critical to the final order of dismissal?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, weighs evidence, and issues decisions on matters under the jurisdiction of a government agency. In this case, the ALJ was Thomas Shedden.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a compilation of rules and regulations of Arizona’s state agencies. Section R2-19-119 is cited as establishing the standard of proof.

ARIZ. REV. STAT.

The Arizona Revised Statutes, which are the codified laws of the state of Arizona. Various sections are cited to establish jurisdiction and the appeals process.

Bylaws

A set of rules established by an organization, such as a homeowners’ association, to regulate itself. In this case, the bylaws are treated as a binding contract between the parties.

Conclusion of Law

The section of a legal decision where the judge applies legal principles and statutes to the established facts of the case.

Finding of Fact

The section of a legal decision that lists the factual determinations made by the judge based on the evidence presented during the hearing.

Judicial Review

The process by which a court of law reviews the decision of a lower court or an administrative agency to determine if the decision was legally sound.

Office of Administrative Hearings (OAH)

A state agency that provides a neutral forum for conducting administrative hearings for other state agencies. The hearings in this matter were held at the OAH.

Petitioner

The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, the petitioner was Mary J. Bartle.

Preponderance of the Evidence

The standard of proof in most civil cases. It is met when the evidence presented has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Prevailing Party

The party in a legal dispute who is successful and in whose favor the judgment is rendered. In this case, the Respondent was deemed the prevailing party.

Rehearing

A second hearing of a case to consider new evidence or to argue against the original decision on the basis of an error. Ms. Bartle’s request for a rehearing was granted.

Respondent

The party against whom a petition is filed. In this case, the respondent was the Saguaro West Owner’s Association.

A Homeowner Found a Mysterious $49,000 Transaction in Her HOA’s Books. The Reason She Lost in Court Is a Lesson for Everyone.

Introduction: The David-vs-Goliath Fight That Didn’t Go as Planned

For many homeowners, dealing with a Homeowners’ Association (HOA) can feel like a constant battle for transparency and fairness. It’s a common story: a resident raises concerns about financial decisions made behind closed doors, only to be met with resistance or silence. But what happens when a homeowner pushes back and takes that fight to an administrative hearing?

After an initial hearing and a persistent request for a rehearing, the final decision in Mary J. Bartle’s case against the Saguaro West Owner’s Association seemed, on the surface, like a clear-cut quest for accountability. The dispute centered on a single, alarming event: the withdrawal and subsequent redeposit of $49,000.50 from the association’s operating account without any notice to the members. It appeared to be a straightforward case of a concerned resident demanding answers.

However, the ruling from the administrative hearing offers a surprising and crucial lesson in how the legal system operates. The outcome reveals that suspicion, no matter how justified, is not enough to win. This article breaks down the top counter-intuitive takeaways from the judge’s decision and what they mean for any homeowner considering a legal challenge against their HOA.

Takeaway 1: A “Suspicious” Act Isn’t a Guaranteed Win

Feeling Something Is Wrong Isn’t the Same as Proving It.

The core facts of the case were not in dispute. On October 22, 2018, $49,000.50 was withdrawn from the Saguaro West Owner’s Association’s operating account. On November 30, 2018, the exact same amount was redeposited. Members were not notified of these transactions. To any reasonable observer, this activity raises immediate questions.

Even the Administrative Law Judge presiding over the case acknowledged the questionable nature of the transaction. In his final decision, he validated Ms. Bartle’s initial concerns with a striking statement:

The evidence shows that $49,000.50 was withdrawn from the Association’s account in October 2018 and the same amount was deposited in November 2018, and there is evidence to suggest that the transactions may have been in violation of the law.

This is the most stunning part of the case: the judge agreed that the transaction looked suspicious and might have broken the law, yet Ms. Bartle still lost. This reveals a critical distinction in legal proceedings. A judge is not an arbiter of general fairness but an interpreter of specific laws and rules. The judge’s comment shows he understood the spirit of Ms. Bartle’s complaint, but his hands were tied by the letter of her petition. The legal system requires more than a gut feeling; it demands specific proof that a specific rule was violated, which leads directly to the next critical lesson.

Takeaway 2: You Must Prove theExactRule Was Broken

Specificity Is Your Only Weapon.

Ms. Bartle’s case was ultimately narrowed to a single, highly specific issue: whether the $49,000.50 transaction violated Article VIII, section 8(d) of the association’s bylaws. This is a crucial detail because courts and administrative bodies require this rigid specificity to ensure fairness, prevent “moving goalposts,” and keep proceedings focused on the actual claims filed, not a general feeling of grievance.

Her entire case hinged on proving a violation of that specific section and no other. The rule in question outlines the treasurer’s duties, which include the power to: “receive and deposit…all monies,” “disburse such funds as directed,” “sign all checks,” and “keep proper books of account.”

The judge’s conclusion was brutally precise. He found that Ms. Bartle had “not shown by a preponderance of the evidence” that the transaction violated any of those specific, listed duties. She couldn’t prove the treasurer failed to deposit money or keep proper books; she could only prove a strange transaction occurred that wasn’t explicitly forbidden by the rule she cited. This is a critical lesson: it doesn’t matter if an HOA’s action feels wrong; what matters is whether you can prove it violated the precise rule you cited in your petition.

Takeaway 3: The Burden of Proof Rests Entirely on the Accuser

It’s Your Job to Build the Case, Not Theirs to Disprove It.

In a civil administrative hearing like this, the petitioner—Ms. Bartle—carries the “burden of proof.” The standard she had to meet was the “preponderance of the evidence.” The legal definition for this is:

“superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

In simple terms, she had to present enough convincing evidence to make the judge believe that her version of events was more likely true than not. The judge’s decision explicitly states that Ms. Bartle bore this burden and ultimately failed to meet it.

One of the most powerful details from the case file illustrates this point perfectly: the Saguaro West Owner’s Association, though represented by legal counsel, “presented no witnesses.” They didn’t have to. They didn’t need to explain the transaction or justify their actions because Ms. Bartle failed to build a strong enough case to prove her specific claim. The onus was completely on her to prove her argument, and when it fell short, the case was dismissed.

Conclusion: A Sobering Reminder for Homeowners

The case of Mary Bartle is a sobering reminder that winning a legal fight against a well-resourced entity like an HOA is less about moral rightness and more about meticulous legal strategy and precision.

While the judge acknowledged that Ms. Bartle’s concerns about the $49,000.50 transaction were potentially valid, her petition was dismissed not on a simple technicality, but because of a core principle of law: the failure to prove that the specific rule cited had actually been broken. Her case highlights the immense challenge for individual homeowners seeking transparency. It leaves us asking, if the legal bar is this specific, what practical recourse do residents have when they feel something is fundamentally wrong?

Case Participants

Petitioner Side

Mary J Bartle (petitioner)
Appeared on her own behalf and testified

Respondent Side

Nicole Payne (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Counsel for Saguaro West Owner's Association
Edith Rudder (attorney)
Carpenter, Hazlewood, Delgado & Bolen, PLC
Counsel for Saguaro West Owner's Association

Neutral Parties

Thomas Shedden (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate