CC&R Article 1, Section 10; Enforcement, Fines and Appeals Policy ("Policy")
Outcome Summary
Petitioner's complaint regarding the wrongful assessment of attorney's fees was dismissed because she failed to prove, by a preponderance of the evidence, that the HOA violated its Policy regarding pre-attorney notification requirements.
Why this result: Petitioner failed to meet her burden of proof; the ALJ found the Policy does not require the two notices prior to attorney escalation, as Petitioner had alleged.
Key Issues & Findings
Alleged violation of Policy concerning attorney's fees assessment and required pre-litigation notices.
Petitioner alleged the Association wrongfully assessed attorney's fees, arguing the Policy required providing the owner two warning notices and a certified letter before escalating a matter to attorney involvement.
Orders: Petitioner's petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. § 41-1092.07(F)(6)
Analytics Highlights
Topics: attorney fees, HOA policy enforcement, notice requirements, CC&Rs, due process
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 32-2199.02(A)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
ARIZ. REV. STAT. section 32-2199.02(B)
ARIZ. REV. STAT. section 32-2199.04
ARIZ. REV. STAT. § 41-1092.07(F)(6)
Video Overview
Audio Overview
Decision Documents
22F-H2221008-REL Decision – 926455.pdf
Uploaded 2026-01-23T17:40:13 (93.9 KB)
Study Guide – 22F-H2221008-REL
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{ “case”: { “docket_no”: “22F-H2221008-REL”, “case_title”: “Susan L Jarzabek vs. Hillcrest Improvement Association #2”, “decision_date”: “2021-11-19”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA send a violation directly to their attorney without sending me warning letters first?”, “short_answer”: “Yes, if the community’s enforcement policy allows for immediate escalation to legal counsel.”, “detailed_answer”: “In this case, the ALJ ruled that the HOA did not violate its policy by involving a lawyer without prior notices, because the policy contained a provision stating that the standard notice procedure ceases to apply once a matter is escalated to an attorney.”, “alj_quote”: “The Policy also provides in pertinent part that the Association may escalate a matter to its attorney for further action, if a matter is escalated to the attorney, the notice-procedure will no longer apply”, “legal_basis”: “HOA Enforcement Policy / Contract Law”, “topic_tags”: [ “enforcement process”, “attorney referral”, “notice requirements” ] }, { “question”: “If the HOA sends my violation to a lawyer, do I have to pay the attorney’s fees?”, “short_answer”: “Yes, generally, if the CC&Rs and enforcement policy state that the owner is responsible for enforcement costs.”, “detailed_answer”: “The decision notes that the governing documents (CC&Rs) specifically allow the Association to recover enforcement costs, including attorney’s fees, from the owner. Additionally, the specific policy noted that upon escalation, the owner becomes responsible for these costs.”, “alj_quote”: “CC&R Art. VIII, Section 1, Enforcement, provides that the Association may recover from an owner its enforcement costs, including attorney’s fees.”, “legal_basis”: “CC&Rs Article VIII, Section 1”, “topic_tags”: [ “attorney fees”, “fines and penalties”, “collection costs” ] }, { “question”: “Who has to prove that the HOA did something wrong in a hearing?”, “short_answer”: “The homeowner (petitioner) filing the complaint bears the burden of proof.”, “detailed_answer”: “When a homeowner petitions the Department of Real Estate alleging a violation by the HOA, it is up to the homeowner to provide sufficient evidence to prove that the violation occurred.”, “alj_quote”: “Ms. Jarzabek bears the burden of proof to show that the alleged violation occurred.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “burden of proof”, “legal procedure”, “hearing standards” ] }, { “question”: “Is an HOA’s enforcement policy legally considered a binding contract?”, “short_answer”: “Yes, the policy is treated as part of the contract between the HOA and the homeowners.”, “detailed_answer”: “The Administrative Law Judge affirmed that community policies are part of the contractual agreement between the parties, meaning both the homeowner and the HOA are legally required to follow the terms written in that policy.”, “alj_quote”: “The Policy is part of contract between the parties and the parties are required to comply with its terms.”, “legal_basis”: “Contract Law; Johnson v. The Pointe Community Association”, “topic_tags”: [ “contract law”, “governing documents”, “policy enforcement” ] }, { “question”: “Can the Administrative Law Judge cancel the specific debt or fees I owe the HOA?”, “short_answer”: “Not necessarily; the tribunal’s jurisdiction may be limited to determining if a violation of documents occurred, not the validity of the debt itself.”, “detailed_answer”: “The ALJ explicitly noted in a footnote that while they can determine if the HOA violated its policy, they did not have the jurisdiction to decide if the specific attorney’s fees charged constituted a valid debt.”, “alj_quote”: “it is not within this tribunal’s jurisdiction to determine whether the attorney’s fees levied against Ms. Jarzabek are a valid debt, and the tribunal offers no opinion on that issue.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.07(F)(6)”, “topic_tags”: [ “jurisdiction”, “debt validity”, “tribunal limitations” ] }, { “question”: “What standard of evidence is used to make a decision in an HOA dispute?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is ‘preponderance of the evidence,’ which means the evidence must show it is more likely than not that the claim is true. It is described as the greater weight of the evidence.”, “alj_quote”: “The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “legal standards”, “evidence”, “administrative hearing” ] } ] }
Blog Post – 22F-H2221008-REL
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{ “case”: { “docket_no”: “22F-H2221008-REL”, “case_title”: “Susan L Jarzabek vs. Hillcrest Improvement Association #2”, “decision_date”: “2021-11-19”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA send a violation directly to their attorney without sending me warning letters first?”, “short_answer”: “Yes, if the community’s enforcement policy allows for immediate escalation to legal counsel.”, “detailed_answer”: “In this case, the ALJ ruled that the HOA did not violate its policy by involving a lawyer without prior notices, because the policy contained a provision stating that the standard notice procedure ceases to apply once a matter is escalated to an attorney.”, “alj_quote”: “The Policy also provides in pertinent part that the Association may escalate a matter to its attorney for further action, if a matter is escalated to the attorney, the notice-procedure will no longer apply”, “legal_basis”: “HOA Enforcement Policy / Contract Law”, “topic_tags”: [ “enforcement process”, “attorney referral”, “notice requirements” ] }, { “question”: “If the HOA sends my violation to a lawyer, do I have to pay the attorney’s fees?”, “short_answer”: “Yes, generally, if the CC&Rs and enforcement policy state that the owner is responsible for enforcement costs.”, “detailed_answer”: “The decision notes that the governing documents (CC&Rs) specifically allow the Association to recover enforcement costs, including attorney’s fees, from the owner. Additionally, the specific policy noted that upon escalation, the owner becomes responsible for these costs.”, “alj_quote”: “CC&R Art. VIII, Section 1, Enforcement, provides that the Association may recover from an owner its enforcement costs, including attorney’s fees.”, “legal_basis”: “CC&Rs Article VIII, Section 1”, “topic_tags”: [ “attorney fees”, “fines and penalties”, “collection costs” ] }, { “question”: “Who has to prove that the HOA did something wrong in a hearing?”, “short_answer”: “The homeowner (petitioner) filing the complaint bears the burden of proof.”, “detailed_answer”: “When a homeowner petitions the Department of Real Estate alleging a violation by the HOA, it is up to the homeowner to provide sufficient evidence to prove that the violation occurred.”, “alj_quote”: “Ms. Jarzabek bears the burden of proof to show that the alleged violation occurred.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “burden of proof”, “legal procedure”, “hearing standards” ] }, { “question”: “Is an HOA’s enforcement policy legally considered a binding contract?”, “short_answer”: “Yes, the policy is treated as part of the contract between the HOA and the homeowners.”, “detailed_answer”: “The Administrative Law Judge affirmed that community policies are part of the contractual agreement between the parties, meaning both the homeowner and the HOA are legally required to follow the terms written in that policy.”, “alj_quote”: “The Policy is part of contract between the parties and the parties are required to comply with its terms.”, “legal_basis”: “Contract Law; Johnson v. The Pointe Community Association”, “topic_tags”: [ “contract law”, “governing documents”, “policy enforcement” ] }, { “question”: “Can the Administrative Law Judge cancel the specific debt or fees I owe the HOA?”, “short_answer”: “Not necessarily; the tribunal’s jurisdiction may be limited to determining if a violation of documents occurred, not the validity of the debt itself.”, “detailed_answer”: “The ALJ explicitly noted in a footnote that while they can determine if the HOA violated its policy, they did not have the jurisdiction to decide if the specific attorney’s fees charged constituted a valid debt.”, “alj_quote”: “it is not within this tribunal’s jurisdiction to determine whether the attorney’s fees levied against Ms. Jarzabek are a valid debt, and the tribunal offers no opinion on that issue.”, “legal_basis”: “ARIZ. REV. STAT. § 41-1092.07(F)(6)”, “topic_tags”: [ “jurisdiction”, “debt validity”, “tribunal limitations” ] }, { “question”: “What standard of evidence is used to make a decision in an HOA dispute?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is ‘preponderance of the evidence,’ which means the evidence must show it is more likely than not that the claim is true. It is described as the greater weight of the evidence.”, “alj_quote”: “The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “ARIZ. ADMIN. CODE § R2-19-119”, “topic_tags”: [ “legal standards”, “evidence”, “administrative hearing” ] } ] }
Case Participants
Petitioner Side
Susan L Jarzabek(petitioner, witness)
Respondent Side
Haidyn DiLorenzo(HOA attorney) Counsel for Respondent
Robert Cody(board president, witness) Hillcrest Improvement Association #2
Beth Mulcahy(HOA attorney) Mulcahy Law Firm, PC Recipient of transmission; firm engaged by Association
Neutral Parties
Thomas Shedden(ALJ)
Louis Dettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission (via email)
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission (via email)
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission (via email)
vnunez(ADRE staff) Arizona Department of Real Estate Recipient of transmission (via email)
Miranda Alvarez(OAH staff) Transmitter of Decision
Other Participants
John Jarzabek(spouse) Petitioner's husband, named on certified letter sent by Association
The Administrative Law Judge dismissed the petition, finding that Petitioner Richard J. Jones failed to meet his burden of proof to show the Association violated its Design Guidelines or engaged in selective enforcement.
Why this result: Petitioner did not show by a preponderance of the evidence that the Association violated the Guidelines or engaged in selective enforcement. Evidence indicated that the Petitioner was in violation of the existing Guidelines by failing to obtain prior approval for his driveway extension and failing to meet the required setback.
Key Issues & Findings
Petitioner alleged the Association violated Design Guidelines regarding setback requirements for driveway extensions and engaged in selective enforcement.
Petitioner filed a single issue petition asserting that Design Guidelines did not require a twelve-inch setback for driveway extensions from the property line and that the Association was selectively enforcing its rules. The Petitioner had installed a concrete driveway extension without obtaining prior ARC approval, and approval was denied due to the lack of the twelve-inch setback.
Orders: Richard J. Jones’s petition is dismissed.
Filing fee: $0.00, 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)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Tierra Ranchos Homeowners Ass’n v Kitchukov, 216 Ariz. 173, 165 P.3d 173 (App. 2007)
Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
Tierra Ranchos Homeowners Ass’n v Kitchukov, 216 Ariz. 173, 165 P.3d 173 (App. 2007)
Video Overview
Audio Overview
Decision Documents
21F-H2121038-REL Decision – 924982.pdf
Uploaded 2026-01-23T17:36:52 (100.9 KB)
21F-H2121038-REL Decision – 924983.pdf
Uploaded 2026-01-23T17:36:57 (94.9 KB)
Briefing Doc – 21F-H2121038-REL
Briefing Document: Jones v. Desert Oasis of Surprise Master Association
Executive Summary
This document synthesizes the findings and conclusions of the Administrative Law Judge in the case of Richard J. Jones versus the Desert Oasis of Surprise Master Association (Case No. 21F-H2121038-REL). The dispute centered on a concrete driveway extension installed by Mr. Jones without the prior approval of the Association’s Architectural Review Committee (ARC). Mr. Jones contested the Association’s denial of his post-installation application, alleging that the Design Guidelines were misinterpreted and selectively enforced.
The Administrative Law Judge, Thomas Shedden, ultimately dismissed Mr. Jones’s petition. The decision rested on three key determinations:
1. Clear Violation: Mr. Jones was in direct violation of the Design Guidelines by failing to obtain prior approval for the modification and by not adhering to a mandatory 12-inch setback from the common block wall, a fact he acknowledged.
2. Reasonable Interpretation: The Association’s interpretation that the 12-inch setback requirement applied to the entire property line—not just the block wall—was deemed “not unreasonable,” particularly since the common wall is part of the property line.
3. Failure to Prove Selective Enforcement: Mr. Jones did not meet the “preponderance of the evidence” standard to prove his claim of selective enforcement. The Association provided credible evidence demonstrating consistent application of the setback rule to other homeowners.
The final order upholds the Association’s enforcement actions and dismisses the petitioner’s claims.
Case Overview
Parties and Jurisdictional Details
Name / Entity
Representation
Petitioner
Richard J. Jones
On his own behalf
Respondent
Desert Oasis of Surprise Master Association
Troy Stratman, Esq.
Adjudicator
Thomas Shedden
Administrative Law Judge
Case No.
21F-H2121038-REL
Hearing Date
November 2, 2021
Decision Date
November 15, 2021
Core Dispute
The central conflict arose from a concrete driveway extension installed by Richard J. Jones on his property on May 11, 2020. The installation was performed without submitting a request for prior approval to the Association’s Architectural Review Committee (ARC), a violation of the community’s CC&Rs. Following the installation, the ARC denied Mr. Jones’s retroactive application, citing its failure to meet a required 12-inch setback from the property line. This led to a notice of non-compliance and a fine, prompting Mr. Jones to file a petition with the Arizona Department of Real Estate.
Chronology of Events
• April 2020: Mr. Jones contacted AAM, LLC, the Association’s property management company, to inquire about adding concrete strips. He was informed this was not allowed but that an employee could assist with an approval process for a paver driveway extension.
• May 11, 2020: Having not received further guidance from the management company, Mr. Jones proceeded to have the concrete driveway extension installed.
• Post-May 11, 2020: Mr. Jones submitted an application to the ARC for retroactive approval of the already-installed extension.
• December 2, 2020: The ARC formally denied Mr. Jones’s application. The denial letter stated the extension did not meet the 12-inch setback requirement and advised him to reapply after cutting the driveway back from the property line.
• January 12, 2021: The Association issued a Second Notice of Non-compliance/Fine.
• February 12, 2021: Mr. Jones filed a petition with the Department of Real Estate, alleging the Association was misinterpreting and selectively enforcing its Design Guidelines.
• November 2, 2021: The administrative hearing was conducted.
• November 15, 2021: The Administrative Law Judge issued a decision dismissing Mr. Jones’s petition.
Analysis of Arguments and Evidence
Petitioner’s Position (Richard J. Jones)
Mr. Jones’s case was built on two primary arguments:
• Interpretation of Design Guidelines: He contended that the Guidelines in effect at the time of installation required a 12-inch setback from the “common wall” but were silent regarding the “property line.” He argued that since the Guidelines explicitly mandated a property line setback for sidewalks, the absence of such language for driveway extensions meant the requirement did not apply.
• Allegation of Selective Enforcement: He asserted that the Association was applying its Guidelines and Rules inconsistently among homeowners.
During testimony, Mr. Jones acknowledged that his driveway extension did not comply with the 12-inch setback from the common wall and expressed a willingness to correct that specific deficiency. He also testified that his neighbors did not object to the extension as installed.
Respondent’s Position (Desert Oasis of Surprise Master Association)
The Association, represented by counsel, presented a multi-faceted defense:
• Procedural Failure: A core issue was Mr. Jones’s failure to obtain prior approval from the ARC before installation, as mandated by Section 4.1.1 of the CC&Rs.
• Violation of Setback Rule: The Association maintained that the extension violated the required 12-inch setback. The property manager, Paul Favale, testified that this rule is intended to ensure water does not drain onto a neighbor’s property.
• Evidence of Consistent Enforcement: To counter the claim of selective enforcement, the Association submitted an “Architectural Status Report” for the period of August 27, 2020, through April 21, 2021. This report demonstrated that other homeowners’ requests for driveway extensions had also been denied for failing to meet the 12-inch property line setback.
It was also noted that the Design Guidelines have since been modified to explicitly require a 12-inch setback from both the common wall and the property line.
Administrative Law Judge’s Findings and Conclusions
The Judge’s decision was based on a thorough analysis of the evidence presented and the applicable legal standards.
Key Findings of Fact
• Mr. Jones installed the driveway extension on May 11, 2020, without prior approval from the ARC.
• The extension does not have a 12-inch setback from the common block wall, which is part of the property line.
• The Design Guidelines at the time explicitly required a 12-inch setback from the block wall.
• Mr. Jones acknowledged his non-compliance with the block wall setback requirement.
Conclusions of Law
The Judge concluded that Mr. Jones failed to meet his burden of proof, which required demonstrating a violation by the Association by a “preponderance of the evidence.”
1. Petitioner’s Violation: Mr. Jones was found to be in violation of the Guidelines. His acknowledgment that the driveway did not comply with the 12-inch setback from the common wall was a critical factor.
2. Reasonableness of Association’s Interpretation: The Judge determined that the Association’s interpretation of the Guidelines—requiring a 12-inch setback along the entire property line—was “not unreasonable.” This conclusion was supported by two points: the common wall is physically part of the property line, and Mr. Jones had failed to follow the required prior approval process, where such ambiguities would have been clarified.
3. No Evidence of Selective Enforcement: The Association presented “credible evidence” via its Architectural Status Report showing that other members were subject to the same rule. Consequently, Mr. Jones “did not show by a preponderance of the evidence that the Association was selectively enforcing the Guidelines.”
Final Order and Implications
• Order: The Judge ordered that Richard J. Jones’s petition be dismissed.
• Legal Standing: The decision is binding on both parties.
• Appeal Process: The order can only be challenged through a request for rehearing, which must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order (November 15, 2021).
Study Guide – 21F-H2121038-REL
Study Guide: Jones v. Desert Oasis of Surprise Master Association
This guide provides a comprehensive review of the administrative case No. 21F-H2121038-REL, involving Petitioner Richard J. Jones and Respondent Desert Oasis of Surprise Master Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and final judgment.
——————————————————————————–
Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the provided case documents.
1. Who were the primary parties involved in this administrative hearing, and what were their roles?
2. What specific modification did Richard J. Jones make to his property, and on what date did he complete it?
3. What critical step did Mr. Jones fail to take before installing the modification, as required by Section 4.1.1 of the CC&Rs?
4. According to the Design Guidelines in effect at the time of installation, what was the specific rule regarding the placement of driveway extensions that Mr. Jones’s project violated?
5. What was Mr. Jones’s main argument regarding the ambiguity of the Design Guidelines concerning the twelve-inch setback requirement?
6. What justification did the Association’s property manager, Paul Favale, provide for the setback requirement?
7. What were the two primary claims Mr. Jones made against the Association in his petition filed on February 12, 2021?
8. What is the standard of proof required in this matter, and which party carried the burden of meeting that standard?
9. How did the Association counter Mr. Jones’s claim that it was selectively enforcing its rules?
10. What was the final order issued by the Administrative Law Judge in this case?
——————————————————————————–
Answer Key
1. The primary parties were the Petitioner, Richard J. Jones, a homeowner who appeared on his own behalf, and the Respondent, the Desert Oasis of Surprise Master Association, which was represented by its counsel, Troy Stratman, Esq.
2. On May 11, 2020, Mr. Jones added a concrete driveway running from the street to a side gate on his property. This modification is referred to in the documents as a “driveway extension.”
3. Mr. Jones did not submit a request for prior approval to the Architectural Review Committee (ARC) before installing his driveway extension. This pre-approval is required for such modifications under the Association’s CC&Rs.
4. The driveway extension violated the rule requiring a twelve-inch setback from the common block wall. Mr. Jones acknowledged that his driveway did not comply with this specific requirement of the Design Guidelines.
5. Mr. Jones argued that since the Design Guidelines explicitly required a twelve-inch setback from the property line for sidewalks but did not explicitly state the same for driveway extensions, the requirement did not apply to his project along the full property line.
6. Mr. Favale testified that the purpose of the setback requirement is functional. It is designed to help ensure that water does not drain from one property onto a neighboring property.
7. Mr. Jones’s petition asserted that the Design Guidelines for driveway extensions did not require a setback from the property line (only the common wall). He also claimed that the Association was selectively enforcing its Guidelines and Rules against him.
8. The standard of proof was a preponderance of the evidence. The Petitioner, Mr. Jones, bore the burden of proof to show that the Association had violated its own guidelines.
9. The Association submitted an Architectural Status Report covering August 27, 2020, to April 21, 2021. This report provided credible evidence that other Association members had also been denied requests for driveway extensions due to a failure to meet the twelve-inch setback requirement.
10. The Administrative Law Judge, Thomas Shedden, ordered that Richard J. Jones’s petition be dismissed. The judge concluded that Mr. Jones had not met his burden of proof to show the Association had violated its guidelines or enforced them selectively.
——————————————————————————–
Essay Questions
The following questions are designed to encourage deeper analysis of the case. Answers are not provided.
1. Discuss the concept of “burden of proof” and the “preponderance of the evidence” standard as they were applied in this case. Explain specifically how Mr. Jones failed to meet this burden for both of his primary claims.
2. Analyze the legal reasoning used by the Administrative Law Judge to determine that the Association’s interpretation of its Design Guidelines was “not unreasonable.” Consider the judge’s reference to the common wall being part of the property line and Mr. Jones’s failure to obtain prior approval.
3. Trace the timeline of events from Mr. Jones’s initial inquiry to AAM, LLC in April 2020 to the final order in November 2021. Discuss how Mr. Jones’s decision to proceed with construction without explicit approval ultimately weakened his legal position.
4. Evaluate the claim of “selective enforcement.” What kind of evidence would Mr. Jones have needed to present to successfully prove this claim, and why was the Association’s Architectural Status Report considered more compelling evidence by the court?
5. The “Conclusions of Law” section states that the Design Guidelines are part of a contract between the parties. Using the facts of this case, explain the legal and practical implications of this principle for a homeowner living within a master association.
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Glossary of Key Terms
Definition
AAM, LLC
The property management company for the Desert Oasis of Surprise Master Association.
Administrative Law Judge (ALJ)
The judge who presides over administrative hearings and renders decisions. In this case, the ALJ was Thomas Shedden.
Architectural Review Committee (ARC)
The committee within the homeowners’ association responsible for reviewing and granting prior approval for modifications to properties, such as driveway extensions.
Burden of Proof
The obligation on a party in a dispute to provide sufficient evidence to support their claim. In this case, the burden of proof was on the petitioner, Mr. Jones.
An abbreviation for Covenants, Conditions, and Restrictions, which are the governing legal documents for a planned community or homeowners’ association.
Design Guidelines
A set of rules that are part of the contract between homeowners and the association, detailing requirements for property modifications.
Driveway Extension
As defined by the parties, a concrete driveway running from the street to a gate at the side of a house.
Petitioner
The party who files a petition to initiate a legal proceeding. In this case, Richard J. Jones.
Preponderance of the Evidence
The standard of proof required in this case. It is defined as evidence that has “the most convincing force” and is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Respondent
The party against whom a petition is filed. In this case, the Desert Oasis of Surprise Master Association.
Selective Enforcement
The legal claim that an association is not applying its rules and guidelines uniformly, instead penalizing some members while allowing others to violate the same rules.
Setback
A required distance that a structure must be located away from a property line or other feature, such as a common wall. In this case, the requirement was for a twelve-inch setback.
Blog Post – 21F-H2121038-REL
He Fought the HOA Over 12 Inches of Concrete—and Lost. Here Are 4 Surprising Lessons from His Case.
Navigating the rules of a Homeowners’ Association (HOA) can feel like walking through a minefield of regulations, where a small misstep can lead to notices, fines, and protracted disputes. For one homeowner, Richard J. Jones, a conflict with his HOA, the Desert Oasis of Surprise Master Association, over a new driveway extension escalated all the way to a formal hearing. The official legal decision in his case reveals several counter-intuitive truths about how these disputes are won and lost, offering valuable lessons for any homeowner living under HOA governance.
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1. “Asking for Forgiveness” is a Losing Strategy.
The first major takeaway is that violating rules first and hoping for retroactive approval is an approach doomed to fail, even when the situation feels complex. The story here is more nuanced than simple defiance. In April 2020, before any work began, Mr. Jones contacted the HOA’s management company about his plans. After being told his initial idea for “two concrete strips” was not allowed, he was directed to another employee for help with an application for a different design. According to the case file, Mr. Jones “did not hear back from her and he had the driveway extension installed” on May 11, 2020.
While his frustration is relatable, this impatient miscalculation was his crucial error. Section 4.1.1 of the community’s CC&Rs requires prior approval from the Architectural Review Committee (ARC). By proceeding without securing this written approval, Mr. Jones was in immediate violation. His subsequent application, submitted only after the work was done, was predictably denied on December 2, 2020. The lesson is stark: a breakdown in communication does not absolve a homeowner of their responsibility to follow procedure. The moment unapproved work begins, you are in breach of the community’s governing documents, and the merits of the project become secondary to the procedural failure.
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2. You Have to Prove the HOA is Wrong—Not the Other Way Around.
Many homeowners assume that in a dispute, the burden is on the HOA to prove the homeowner is wrong. The legal reality is the exact opposite. The Administrative Law Judge’s decision formally stated in Conclusion of Law #2 that Mr. Jones, as the petitioner who brought the case, bore the “burden of proof.”
To win, he had to demonstrate that the Association committed a violation by a “preponderance of the evidence.” The judge’s decision cites the formal definition from Black’s Law Dictionary, which essentially means the evidence presented must be convincing enough to incline a fair and impartial mind to one side of the issue rather than the other. The reality for homeowners is surprising and crucial: in a formal dispute, the legal scales are not neutral. You must actively build a case and convincingly prove the HOA has violated its own rules. Mr. Jones failed to meet this standard.
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3. A Small Loophole Isn’t Enough to Win.
Mr. Jones’s central argument rested on a perceived loophole in the governing documents. He claimed the Design Guidelines required a 12-inch setback from the “common wall” but were silent about the “property line” as a whole, and therefore the rule didn’t apply to the entirety of his project. This highlights a key aspect of HOA governance: the purpose behind a rule matters. The property manager testified that the setback requirement exists to “ensure that water does not drain to the neighbor’s property,” transforming the rule from an arbitrary measurement into a practical and defensible standard.
Ultimately, the judge was unpersuaded by the loophole argument, and the reason is a masterclass in how these cases are decided. The judge’s decision, articulated in Conclusion of Law #7, pointed out that the common wall is fundamentally part of the property line. More importantly, the decision explicitly connected this conclusion to Mr. Jones’s prior actions: “…considering that Mr. Jones did not obtain prior approval from ARC before constructing his driveway extension, the Association’s interpretation…is not unreasonable.” This is the crucial insight: his procedural failure (Lesson #1) directly weakened his ability to argue about ambiguous wording. An HOA’s reasonable interpretation of its own rules is far more likely to be upheld when the homeowner has already disregarded clear procedural mandates. Tellingly, the Association later modified the guidelines to explicitly close this perceived loophole.
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4. Proving “Selective Enforcement” is Harder Than You Think.
A common defense from homeowners is that the HOA is engaging in “selective enforcement”—singling them out while letting others get away with similar violations. Mr. Jones made this exact claim, but the Association came prepared with meticulous documentation to defeat it.
As detailed in Finding of Fact #21, the HOA presented an “Architectural Status Report” covering August 27, 2020 through April 21, 2021. This document provided time-stamped evidence that other homeowners’ requests for similar driveway extensions had also been consistently denied for failing to meet the same 12-inch setback requirement. This report systematically dismantled the selective enforcement argument. For homeowners, this underscores a critical point: the feeling of being singled out is not evidence. To win a selective enforcement claim, you must provide clear proof that other members in the exact same situation were treated differently, a high bar that an HOA with good records can easily overcome.
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Conclusion: A Contract is a Contract
The overarching theme from this case is that HOA governing documents are not merely suggestions; they are legally binding. As stated in Conclusion of Law #5, the Design Guidelines are part of a contract between the homeowner and the association. While HOA rules can often feel arbitrary or frustrating, they carry the weight of a contract. The path to successfully challenging them is narrow and requires a clear, well-documented case that proves the HOA, not the homeowner, has breached its duties.
This case serves as a powerful reminder for all community members. How well do you really know the contract you’re living under?
Case Participants
Petitioner Side
Richard J Jones(petitioner) Appeared and testified on his own behalf
Respondent Side
Troy Stratman(attorney) Stratman Law Firm, PLC Counsel for Respondent
Paul Favale(property manager) Desert Oasis of Surprise Master Association Testified for Respondent
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
Administrative Hearing Briefing: Smith v. Sierra Foothills Condominium Association
Executive Summary
This briefing summarizes the administrative legal proceedings between Keith D. Smith (Petitioner) and the Sierra Foothills Condominium Association (Respondent) regarding Case No. 21F-H2120003-REL and its subsequent rehearing. The dispute centered on two primary allegations: that the Association’s Board of Directors established an unreasonable and discriminatory rule regarding a common-element monument sign, and that the Board violated Arizona’s open meeting laws during the adoption of said rule.
Following an initial hearing on October 26, 2020, and a subsequent rehearing considered on June 3, 2021, the Administrative Law Judge (ALJ) dismissed the petition in its entirety. The rulings established that the Association acted within its authority under the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) to create rules for common elements, provided those rules are reasonable. The ALJ found that limiting sign usage to specific buildings was a reasonable exercise of power based on the physical layout of the property. Furthermore, the Petitioner failed to provide substantial evidence to support claims of illegal pre-meeting communications by the Board.
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Core Dispute: Monument Sign Usage
The central conflict involved a monument sign located on the common elements of a commercial condominium consisting of two buildings, Building A and Building B.
The Challenged Rule
On June 10, 2020, the Association Board adopted a policy limiting the use of the monument sign exclusively to Unit owners in Building B. The monument sign contains only five advertising spaces.
Association Justification
The Association argued that the rule was necessary due to the physical limitations of the property:
• Space Scarcity: The sign has a finite capacity (five spaces) that cannot accommodate all owners.
• Building Frontage: Building A has direct street frontage, allowing its owners to hang signs directly on the building wall.
• Lack of Frontage: Building B does not have street frontage, significantly limiting the utility and visibility of any signs hung on its walls.
• Zoning Restrictions: Under the City of Phoenix Sign Code, businesses cannot post signs on buildings they do not occupy. Therefore, Building B owners are prohibited from hanging signs on Building A, making the monument sign their only viable external advertising option.
Petitioner’s Arguments
Mr. Smith, a Unit owner in Building A, challenged the rule based on the following:
• Common Interest: He asserted that his deed grants him an undivided interest in common elements, meaning no owner should have exclusive use of the sign.
• Disparate Treatment: He argued the rule violated CC&R section 6.26(a), which prohibits treating owners differently regarding occupancy and use restrictions.
• Alternative Solutions: Mr. Smith proposed altering the sign to increase capacity or reducing existing sign sizes by half (which he offered to fund).
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Legal Analysis of CC&R Provisions
The ALJ’s decision hinged on the interpretation of specific articles within the Association’s governing documents.
CC&R Section 7.1(C): Board Authority
This section grants the Board the power to adopt, amend, and repeal Rules and Regulations to restrict and govern the use of any area.
• Condition: Rules must not “unreasonably discriminate” and must be consistent with the Declaration and the Act.
• Ruling: The ALJ concluded that discriminating among owners is permitted under 7.1(c) as long as it is not unreasonable. Given the lack of street frontage for Building B, the restriction was deemed a reasonable management of limited resources.
CC&R Section 6.26(a): Use Restrictions
The Petitioner argued that this section required all limitations to be applicable to all occupants equally.
• Scope Limitation: The ALJ found that section 6.26(a) explicitly applies only to “occupancy and use restrictions contained in this Article 6.”
• Ruling: Because the sign rule was promulgated under Article 7, the restrictive language of Article 6.26(a) did not apply.
Common Element Status and Partition
During the proceedings, the Association initially argued the sign was not a common element but later waived this argument. The Petitioner argued that common elements cannot be partitioned under A.R.S. § 33-1217. However, the ALJ found no evidence that the monument sign had been “partitioned” in a legal sense, merely that its use was regulated.
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Open Meeting Law Allegations
Mr. Smith alleged that the Association violated A.R.S. § 33-1248 regarding the conduct of the June 10, 2020, meeting.
Claims of Pre-Meeting Deliberation
The Petitioner asserted that Board members had “obviously” communicated via email and reached a decision before the meeting. His evidence for this was:
• The Board President called for a vote immediately without initiating discussion.
• The Board members appeared to have their minds made up.
Evidence and Testimony
The ALJ rejected these claims based on the following:
• Lack of Proof: The Petitioner admitted he had no emails or physical evidence to support the claim of private deliberation.
• Conflicting Testimony: Association witnesses provided “credible testimony” that a protracted discussion took place, lasting approximately 90 minutes. Mr. Smith himself spoke for 20 minutes during this period.
• New Evidence Barred: During the rehearing, Mr. Smith claimed to possess an email supporting his position. The ALJ refused to consider it, citing Arizona Administrative Code § R2-19-115, which requires all evidence to be presented at the original hearing.
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Procedural Findings and Rehearing
The rehearing (Case No. 21F-H2120003-REL-RHG) addressed the Petitioner’s claims of administrative error and “arbitrary” findings.
ALJ Determination
Number of Issues
The hearing was limited to two issues because the Petitioner only paid the fee for a two-issue hearing. Claims of other meeting deficiencies were excluded.
Sufficiency of Evidence
The ALJ found that the original decision was supported by substantial, reliable, and probative evidence as required by A.R.S. § 41-1092.07.
Reasonableness of Rule
The ALJ reaffirmed that the unequal access to the monument sign was not “unreasonable discrimination” given the objective differences in building locations.
Sign Modification
The Association argued that modifying the sign would require rescinding previous approvals granted to other businesses, a position the ALJ did not find unreasonable.
Final Conclusion
The Administrative Law Judge dismissed the petition in both the original hearing and the rehearing. The final order, dated June 3, 2021, is binding. The Association’s rule limiting monument sign access to Building B was upheld as a reasonable exercise of Board authority, and the Petitioner failed to meet the burden of proof regarding violations of Arizona’s open meeting laws.
Study Guide – 21F-H2120003-REL-RHG
Study Guide: Keith D. Smith vs. Sierra Foothills Condominium Association
This study guide examines the administrative proceedings and legal conclusions regarding the dispute between Keith D. Smith and the Sierra Foothills Condominium Association. The guide covers the original hearing (October 26, 2020) and the subsequent rehearing (March 21, 2021), focusing on the interpretation of CC&Rs, open meeting laws, and the standards of evidence in administrative hearings.
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Part I: Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences based on the provided source context.
1. What were the two primary issues the Petitioner was permitted to raise during the hearings?
2. Why did the Association Board decide to limit the use of the monument sign specifically to owners of units in Building B?
3. What was the Petitioner’s argument regarding his “undivided interest” in the common elements of the condominium?
4. How did the Administrative Law Judge (ALJ) interpret the scope of CC&R section 6.26(a)?
5. What specific evidence did the Petitioner provide to support his allegation that Board members had communicated via email prior to the June 10, 2020, meeting?
6. How did the testimony of Stuart Rayburn and Harold Bordelon contradict the Petitioner’s claim regarding the lack of discussion at the June 10 meeting?
7. What were the two physical alterations to the monument sign suggested by the Petitioner to allow for more advertising space?
8. Why did the ALJ refuse to consider certain City of Phoenix zoning ordinance arguments and new email evidence during the rehearing?
9. According to the “Conclusions of Law,” what is the definition of a “preponderance of the evidence”?
10. What is the final recourse for a party wishing to appeal the order issued following the rehearing?
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Part II: Answer Key
1. The Petitioner was limited to whether the Association violated CC&R section 7.1(C) regarding the Board’s authority to make rules for the monument sign and whether the Association violated open meeting laws under ARIZ. REV. STAT. section 33-1248. These limitations were enforced because the Petitioner only paid the required fees for a two-issue hearing.
2. The Board limited the sign to Building B because the monument sign has space for only five businesses, and unlike Building A, Building B does not have street frontage for advertising. Building A owners have the option to hang signs on their own building walls, a utility not available to Building B owners under city ordinances.
3. The Petitioner argued that his deed grants him an undivided interest in the common elements, which he interpreted to mean that no owner should have exclusive use of the monument sign. He contended that the Association’s common elements cannot be partitioned and that all owners should have access to the advertising space.
4. The ALJ ruled that section 6.26(a), which prohibits disparate treatment of owners, is expressly limited to the occupancy and use restrictions contained within Article 6. Because the rule in question was adopted under the authority of Article 7, the non-discrimination requirements of 6.26(a) did not apply.
5. The Petitioner admitted during the hearing that he had no emails or physical evidence to support his allegation of prior communication among Board members. He relied on the reasoning that because the President called for a vote immediately, they must have “obviously” reached a decision beforehand.
6. The Association’s witnesses provided credible testimony that a protracted discussion took place before the vote, lasting approximately 90 minutes. They noted that the Petitioner himself spoke for twenty minutes and that research on city ordinances and governing documents was presented before the board took action.
7. The Petitioner proposed either reducing the size of existing signs by one-half to create more slots—which he offered to pay for—or increasing the overall size of the monument sign. The Association resisted these plans, arguing they would require rescinding prior approvals and might not meet city codes.
8. The ALJ excluded this information because administrative findings must be based exclusively on evidence and issues raised in the original petition. New evidence or legal theories (such as ARIZ. REV. STAT. section 33-1217) not presented at the original hearing cannot be introduced during a rehearing.
9. A “preponderance of the evidence” is defined as the greater weight of the evidence that possesses the most convincing force. It is evidence sufficient to incline a fair and impartial mind toward one side of an issue rather than the other, even if it does not eliminate all reasonable doubt.
10. The order following a rehearing is binding; however, a party may seek judicial review as prescribed by ARIZ. REV. STAT. Title 12, Chapter 7, Article 6. This appeal must be filed with the superior court within thirty-five days from the date the order was served.
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Part III: Essay Questions
Instructions: Use the provided documents to develop comprehensive responses to the following prompts.
1. The Balance of Equity in Association Governance: Discuss how the Board justified a rule that seemingly treats Building A and Building B owners differently. In your answer, evaluate the ALJ’s conclusion that this “discrimination” was not unreasonable given the physical layout of the property.
2. Statutory Interpretation of CC&Rs: Analyze the conflict between reading the CC&Rs as a “continuous document” versus the ALJ’s strict adherence to the express terms of specific sections (Article 6 vs. Article 7). How does the wording “subject to the provisions of this Declaration” in section 7.1(c) impact this interpretation?
3. Procedural Rigidity in Administrative Hearings: Explain the impact of the Petitioner’s decision to only pay for two issues. How did this choice limit his ability to introduce alternative legal arguments, such as the non-partition of common elements or additional open meeting law violations?
4. The Role of Testimony vs. Allegation: Compare the Petitioner’s reliance on “rhetorical questions” and “obvious” conclusions with the Respondent’s use of witness testimony. How does this case demonstrate the burden of proof required to establish a violation of ARIZ. REV. STAT. section 33-1248?
5. Impact of Local Ordinances on Private Governance: Assess how the City of Phoenix Zoning Ordinance (Section 705) and Sign Code influenced the Board’s policy and the ALJ’s final decision. Why was the distinction between “contiguous” signage and “flexible” placement critical to the reasonableness of the Association’s rule?
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Part IV: Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
A presiding officer who conducts hearings and issues decisions on disputes involving state agency regulations or statutes.
ARIZ. REV. STAT. section 33-1248
The Arizona state statute governing open meeting laws for condominiums, requiring transparency in Board deliberations.
Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and operations of a common interest development.
Common Elements
Portions of a condominium project other than the individual units, managed by the Association and intended for common use.
Monument Sign
A ground-level sign, typically located near a property entrance, used to identify the businesses or residents within a complex.
Partition
The act of dividing a property into separate parts or to sever the unity of possession; in this context, the Petitioner argued common elements cannot be partitioned.
Preponderance of the Evidence
The legal standard of proof in civil and administrative cases, meaning the evidence on one side is more convincing than the other.
Rehearing
A second consideration of a case, usually based on specific grounds such as an irregularity in the original proceeding or an error of law.
Respondent
The party against whom a petition is filed; in this case, the Sierra Foothills Condominium Association.
Substantial Evidence
Evidence that a reasonable mind might accept as adequate to support a conclusion; a requirement for the validity of an ALJ decision.
Undivided Interest
The legal right of each owner to use the whole of the common property, rather than a specific, physically divided portion.
Blog Post – 21F-H2120003-REL-RHG
The Monument Sign Mystery: 4 Surprising Lessons in HOA Power and “Reasonable” Fairness
1. Introduction: The Paradox of Undivided Interest
In the world of commercial real estate, few phrases carry as much weight—or cause as much confusion—as “undivided interest.” When Keith D. Smith purchased a unit in the Sierra Foothills Condominium Association, his deed granted him an interest in the common elements. To many owners, this implies a fundamental right to equal use of every square inch of the property, including high-visibility signage.
However, a recent dispute between Mr. Smith and his Association highlights a complex legal paradox: an owner can have an undivided interest in a common element while being legally barred from using it. The conflict arose when the Board restricted a five-space monument sign to a specific subset of owners, sparking a claim of “unreasonable discrimination.”
Does fairness require a Board to grant every owner a “slice of the pie,” or can they prioritize certain owners for the functional benefit of the whole? The ruling in this case provides a masterclass in how administrative courts define “reasonableness” and “fairness” within a shared property.
2. Takeaway 1: When Equality Isn’t “Reasonable”
At first glance, the Association’s rule seemed blatantly unfair. The Board enacted a policy that limited the use of the monument sign exclusively to owners in Building B, completely barring Building A owners like Mr. Smith.
However, the Administrative Law Judge (ALJ) looked beyond the surface-level exclusion to the “functional reality” of the property. Building A enjoys direct street frontage, allowing its owners to hang signs directly on their building. Building B, situated behind Building A, has no such visibility.
The “legal knot” that sealed the decision was a City of Phoenix Zoning Ordinance. While Building A owners had their own signage options, the ordinance prohibited Building B owners from hanging signs on Building A—the only building visible from the street. Because Building B owners were effectively invisible without the monument sign, the Board’s “discrimination” was deemed a logical, functional necessity rather than an arbitrary act.
CC&R section 7.1(c) grants the Board broad authority to manage common areas:
The Board … subject to the provisions of this Declaration, may adopt, amend and repeal Rules and Regulations. The Rules and Regulations may … restrict and govern the use of any area by any Owner or Occupant…; provided however that the Rules and Regulations shall not unreasonably discriminate among Owners and Occupants.
Because the rule addressed a specific geographical disadvantage, the court found the Board’s decision was reasonable and consistent with its governing authority.
3. Takeaway 2: The “Fine Print” Trap of Article Silos
Mr. Smith argued that the sign rule violated CC&R section 6.26(a), which requires that use restrictions be “applicable to all Occupants.” It is a compelling argument for any property owner: if the rules say everyone must be treated the same, how can the Board pick favorites?
The legal reality, however, comes down to the structural logic of the CC&Rs—what we might call “Article Silos.” The ALJ pointed out that the “equality clause” Mr. Smith cited was explicitly limited to the confines of Article 6 (Occupancy and Use). The Board, however, enacted the sign rule under the powers granted in Article 7 (Association Powers).
In legal interpretation, the specific placement of a rule dictates its reach. The decision emphasized this “smoking gun” phrasing:
…although CC&R section 6.26 does prohibit disparate treatment of Owners, by its express terms, CC&R section 6.26 applies only to CC&R Article 6, and not Article 7.
This serves as a critical warning for property professionals: a protection in one article of a governing document does not necessarily limit the powers granted in another.
4. Takeaway 3: The Burden of Proof and the “Pre-Meeting” Myth
Property owners often suspect that by the time a public meeting begins, the “real” decision has already been made in secret. Mr. Smith alleged that the Board violated Arizona’s Open Meeting Law (A.R.S. § 33-1248) by reaching a consensus via email before the official vote on June 10, 2020.
His evidence was purely circumstantial; he posed a rhetorical question asking how the Board could call for a vote so quickly if they hadn’t already decided. The court, however, requires “substantial evidence” to overturn a Board action.
Testimony revealed that the meeting was far from a “rubber stamp” event. It involved a “protracted” discussion lasting an hour and a half, during which Mr. Smith himself was allowed to speak for 20 minutes. The ALJ applied the standard of the “Preponderance of the Evidence,” which favors the side with the most convincing weight of facts:
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.
5. Takeaway 4: The “Pay-to-Play” Reality of Administrative Hearings
The final lesson is a procedural one that every petitioner must understand: administrative law is a “one-shot” game governed by fees and strict paperwork.
When Mr. Smith filed his petition with the Department of Real Estate, he paid the fee for a two-issue hearing. Consequently, when he attempted to raise a new legal argument during his rehearing—citing A.R.S. § 33-1217 regarding the partition of common elements—the court flatly rejected it. Because the issue wasn’t in the original petition and he hadn’t paid for it to be heard, it simply didn’t exist in the eyes of the court.
The same “closed-door” policy applied to new evidence. During the rehearing, Mr. Smith claimed he finally had an email to prove the Board’s secret communications. The court refused to look at it, noting that because it wasn’t presented at the original hearing, it could not be considered later. In these proceedings, you must bring every issue and every piece of evidence to the table at the very beginning; there are no “add-ons” in the middle of the process.
6. Conclusion: A New Perspective on Common Ground
The dismissal of all claims against the Sierra Foothills Condominium Association clarifies that “common elements” are not always equally shared in practice. Instead, they are managed for the functional benefit of the whole community. In this instance, providing visibility to the “hidden” units in Building B was a reasonable use of limited space, even if it meant Building A owners had to rely on their own street frontage.
This case leaves property owners with a challenging question: If your “undivided interest” doesn’t guarantee you a spot on the sign, what exactly are you entitled to? The answer is rarely found in the spirit of “fairness,” but rather in the specific, siloed mechanics of your Association’s CC&Rs.
Case Participants
Petitioner Side
Keith D Smith(petitioner)
Respondent Side
Sierra Foothills Condominium Association(respondent)
Stuart Rayburn(president) Sierra Foothills Condominium Association Appeared for Respondent
Harold Bordelon(witness) Testified for the Association
Neutral Parties
Thomas Shedden(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
LDettorre(staff) Arizona Department of Real Estate
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.
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.
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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 – 21F-H2120005-REL
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.
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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?
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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.
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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.
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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.
Blog Post – 21F-H2120005-REL
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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 Video Overview
Mind Map Mind Map
Reports Reports
Flashcards Flashcards
Quiz Quiz
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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
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 – 837073.pdf
Uploaded 2026-01-23T17:34:29 (103.9 KB)
Briefing Doc – 21F-H2120003-REL
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.
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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.
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 – 21F-H2120003-REL
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?
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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.
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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.
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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.
Blog Post – 21F-H2120003-REL
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)
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 – 823714.pdf
Uploaded 2026-01-23T17:32:50 (96.1 KB)
Briefing Doc – 20F-H2020056-REL
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 – 20F-H2020056-REL
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.
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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.
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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.
Blog Post – 20F-H2020056-REL
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20F-H2020056-REL
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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?
Based on 1 source
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
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 – 823714.pdf
Uploaded 2025-10-09T03:35:18 (96.1 KB)
Briefing Doc – 20F-H2020056-REL
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 – 20F-H2020056-REL
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.
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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?
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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.
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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.
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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.
Blog Post – 20F-H2020056-REL
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20F-H2020056-REL
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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?
Based on 1 source
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
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.
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.
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.
