Tag Archives: 2017

Gary W Moselle vs. Desert Mountain Master Association

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Case Summary

Case ID 18F-H1817005-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gary W. Moselle Counsel —
Respondent Desert Mountain Master Association Counsel Curtis Ekmark

Alleged Violations

A.R.S. § 33-1804(A)

Outcome Summary

The ALJ denied the Petitioner's petition, concluding that the DMMA Communications committee meeting was not subject to the open meetings law because the committee did not hold 'regularly scheduled' meetings.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804, as the committee meeting in question did not meet the definition of a 'regularly scheduled committee meeting' required to be open to members.

Key Issues & Findings

Whether the Respondent violated the open meeting statute by closing a committee meeting.

Petitioner alleged that the DMMA Communications committee meeting was improperly closed and subject to open meeting laws. The ALJ determined the committee did not hold 'regularly scheduled' meetings (defined as meetings occurring at regular intervals) and was therefore not subject to A.R.S. § 33-1804.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1804
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
  • Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Analytics Highlights

Topics: HOA Open Meetings Law, Committee Meeting, Regularly Scheduled
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, 169 P.3d 115, 117 (App. 2007)
  • Marsoner v. Pima County, 166 Ariz. 486, 488, 803 P.2d 897, 899 (1991)

Video Overview

Audio Overview

Decision Documents

18F-H1817005-REL Decision – 634096.pdf

Uploaded 2026-04-24T11:07:35 (106.4 KB)

18F-H1817005-REL Decision – 605190.pdf

Uploaded 2026-04-24T11:07:41 (77.0 KB)

Briefing Document: Moselle v. Desert Mountain Master Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 18F-H1817005-REL-RHG, a dispute between homeowner Gary W. Moselle (Petitioner) and the Desert Mountain Master Association (DMMA/Respondent). The central issue was whether a “closed” meeting of the DMMA Communications Committee on September 6, 2017, violated Arizona’s open meetings law for planned communities, A.R.S. § 33-1804.

The case hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Petitioner argued this meant any meeting scheduled in a normal fashion, while the Respondent contended it applied only to meetings occurring at fixed, regular intervals. The Respondent provided evidence that the committee in question met infrequently and without a set schedule.

The Administrative Law Judge ultimately ruled in favor of the Respondent, concluding that “regularly scheduled” refers to meetings held at regular intervals. The judge found that the specific language of the statute requiring only “regularly scheduled” committee meetings to be open superseded the statute’s general policy statement in favor of open meetings. The Petitioner’s petition was denied.

Case Background and Timeline

The dispute originated from a petition filed by Gary W. Moselle with the Arizona Department of Real Estate, alleging that the DMMA violated state law by holding a closed committee meeting. The case progressed through an initial hearing, a decision, a successful request for a rehearing based on new evidence, and a final binding decision.

September 1, 2017

Gary W. Moselle files a petition with the Arizona Department of Real Estate.

September 5, 2017

The Department issues a notice to DMMA regarding the petition.

September 6, 2017

The DMMA Communications Committee holds a closed meeting, which Moselle is not permitted to attend.

September 18, 2017

DMMA files an answer to the petition, denying all allegations.

November 17, 2017

The initial hearing is held before the Office of Administrative Hearings.

December 7, 2017

The Administrative Law Judge issues an initial decision denying the petition.

January 4, 2018

Moselle files a request for a rehearing, citing newly discovered material evidence.

January 26, 2017

The Department grants the request for a rehearing.

April 20, 2018

A rehearing is conducted.

May 10, 2018

The Administrative Law Judge issues a final, binding decision denying the Petitioner’s petition.

The Central Legal Question: Interpretation of A.R.S. § 33-1804

The core of the dispute was the correct interpretation of Arizona Revised Statute § 33-1804(A), which governs open meetings for planned communities. The key statutory language under scrutiny was:

“…all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association…”

The case required the Administrative Law Judge to define the term “regularly scheduled” in the context of homeowners’ association committee meetings.

Arguments Presented

Petitioner’s Position (Gary W. Moselle)

The Petitioner’s case was built on a broad interpretation of the statute, emphasizing the legislative intent for transparency.

• Definition of “Regularly Scheduled”: Moselle argued that “regularly scheduled” should be interpreted to mean “scheduled in a normal fashion,” rather than strictly meaning meetings held at fixed intervals (e.g., monthly or quarterly).

• Legislative Policy: He pointed to A.R.S. § 33-1804(F), which states a broad policy that “all meetings of a planned community… be conducted openly.” He argued this policy statement should guide the interpretation of subsection (A) in favor of openness for all committee meetings.

• Committee Practices: In his prehearing brief, Moselle asserted that five of the six “functioning DMMA committees” meet “at the request of the chair,” implying this was the normal scheduling method and should fall under the statute.

Respondent’s Position (Desert Mountain Master Association)

The Respondent advocated for a narrower, more literal interpretation of the statute.

• Definition of “Regularly Scheduled”: DMMA argued the phrase meant meetings that “occurred at regular intervals, such as on the third Thursday of every month, quarterly, or even annually.”

• Evidence of Infrequent Meetings: DMMA presented testimony that the Communications Committee met infrequently and without a fixed interval. The committee held only four meetings in 2016 and 2017: two in April 2016, one in June 2017, and the contested meeting on September 6, 2017.

• Lack of Board Action: To support the claim that the committee was not conducting core business of the Board, DMMA asserted that a recommendation made by the committee (to send an email blast) was not acted upon by the DMMA Board of Directors.

Judicial Findings and Legal Conclusions

The Administrative Law Judge, Tammy L. Eigenheer, denied the petition, siding with the Respondent’s interpretation of the statute. The decision was based on principles of statutory construction and the evidence presented.

1. Statutory Interpretation and Plain Language

The primary goal in construing a statute is to ascertain legislative intent by first looking at the plain language. The Judge concluded that the plain language of A.R.S. § 33-1804(A) supports the interpretation that “regularly scheduled committee meetings” are those that “occur at regular intervals.” While acknowledging that the phrase could have multiple meanings, this did not preclude an interpretation based on its plain language.

2. Petitioner’s Contradictory Testimony

A key factor in the decision was the Petitioner’s own testimony during cross-examination. When asked about his assertion that five DMMA committees meet at the request of the chair, the Judge noted:

“Petitioner stated that five of the committees listed in the Volunteer Request page ‘meet at the request of the chair and they’re not regularly scheduled.'” (Hearing record 30:52 – 31:15)

The Judge found that in this statement, the Petitioner himself used the phrase “not regularly scheduled” to describe meetings that were called as needed rather than held at fixed intervals, thereby undermining his own legal argument.

3. Specific Language Overrides General Policy

The Judge addressed the Petitioner’s argument regarding the statute’s broad policy statement in favor of open meetings (A.R.S. § 33-1804(F)). The decision explicitly states:

“The general policy statement in favor of open meetings set forth in A.R.S. § 33-1804(F) does not override the specific provisions of A.R.S. § 33-1804(A) that only ‘regularly scheduled’ committee meetings must be open to the members.”

This conclusion establishes that the specific qualifier “regularly scheduled” in subsection (A) creates a deliberate exception to the general policy for certain committee meetings.

Final Order and Implications

Order: The Administrative Law Judge ordered that the Petitioner’s petition be denied.

Conclusion: The Judge concluded that at the time of the September 6, 2017 meeting, the DMMA Communication Committee did not hold “regularly scheduled” meetings as defined by the statute. Therefore, the Respondent’s decision to hold a closed meeting was not a violation of A.R.S. § 33-1804.

This decision, issued on May 10, 2018, is binding on the parties. Any appeal must be filed with the superior court within thirty-five days from the date of service.

Study Guide: Moselle v. Desert Mountain Master Association (No. 18F-H1817005-REL-RHG)

This guide provides a detailed review of the Administrative Law Judge Decision in the case between Petitioner Gary W. Moselle and Respondent Desert Mountain Master Association. It includes a quiz with an answer key to test comprehension, essay questions for deeper analysis, and a glossary of key terms.

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Short-Answer Quiz

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

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

2. What specific event and action by the Respondent prompted the Petitioner to file his initial petition?

3. What was the Respondent’s primary argument at the November 17, 2017, hearing for why the Communications committee was not subject to the open meetings law?

4. What was the initial outcome of the case following the first hearing, as decided on December 7, 2017?

5. On what grounds did the Petitioner successfully file for a rehearing of the case?

6. How did the Petitioner, Gary W. Moselle, interpret the statutory phrase “regularly scheduled committee meetings”?

7. How did the Respondent, DMMA, interpret the same phrase, “regularly scheduled committee meetings”?

8. According to the document, what is the primary goal when construing a statute, and what is the first step in that process?

9. What was the significance of the policy statement in A.R.S. § 33-1804(F) regarding open meetings, and how did the judge rule on its applicability?

10. What was the final order issued by the Administrative Law Judge on May 10, 2018, and what was its legal effect on the parties?

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Answer Key

1. The primary parties were Petitioner Gary W. Moselle, a homeowner, and Respondent Desert Mountain Master Association (DMMA), an association of homeowners in Scottsdale, Arizona. Mr. Moselle filed a petition against the DMMA.

2. The Petitioner filed his petition after the Chair of the DMMA’s Communications Committee alleged that a scheduled meeting was “closed” and not subject to Arizona’s open meeting statute. The Petitioner was subsequently not allowed to attend the closed committee meeting held on September 6, 2017.

3. The Respondent argued that the Communications committee did not meet regularly and was therefore not subject to the open meetings law. To support this, they presented testimony that the committee had only met four times in 2016 and 2017.

4. Following the first hearing, the Administrative Law Judge issued a decision on December 7, 2017, in which the Petitioner’s petition was denied.

5. The Petitioner requested a rehearing based on what he cited as newly discovered material evidence, specifically an email sent by the Respondent after the first hearing concluded. He also argued the initial decision was contrary to law and that the Respondent may have misled the judge.

6. The Petitioner argued that “regularly scheduled” should be interpreted to mean scheduled in a normal or ordinary fashion. He contended that because the September 6, 2017, meeting was scheduled in this manner, it should have been open.

7. The Respondent argued that the phrase “regularly scheduled” meant meetings that occurred at regular intervals, such as on a specific day each month, quarterly, or annually. They contended that since the Communications committee met infrequently and without an established interval, its meetings were not “regularly scheduled.”

8. The primary goal when construing a statute is to ascertain the legislature’s intent. The first step is to look at the text of the statute itself and ascribe its plain meaning if the language is clear.

9. The policy statement in A.R.S. § 33-1804(F) declares that it is the state’s policy for all meetings of a planned community to be conducted openly. The judge ruled that this general policy statement does not override the specific provision in A.R.S. § 33-1804(A) that only “regularly scheduled” committee meetings must be open.

10. The final order, issued on May 10, 2018, was that the Petitioner’s petition is denied. As this order was the result of a rehearing, it was binding on the parties, with any further appeal requiring judicial review in the superior court.

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Essay Questions

The following questions are designed for longer, more analytical responses. Answers are not provided.

1. Analyze the competing interpretations of “regularly scheduled” as presented by the Petitioner and Respondent. Discuss which argument the Administrative Law Judge found more compelling and explain the legal reasoning provided in the decision.

2. Discuss the role and significance of Arizona Revised Statute (A.R.S.) § 33-1804(F) in this case. Explain how the Petitioner used this section to support his argument and why the Administrative Law Judge concluded it did not override the specific language in A.R.S. § 33-1804(A).

3. Trace the procedural history of the case from the initial petition filing on September 1, 2017, to the final order on May 10, 2018. Include key dates, events (hearings, decisions, requests), and the outcomes at each stage.

4. Evaluate the evidence presented by the Respondent regarding the meeting frequency of the DMMA Communication committee. How did this evidence support the Respondent’s legal argument and influence the final decision?

5. Based on the “Conclusions of Law” section, explain the standard of proof required in this proceeding (preponderance of the evidence) and the principles of statutory construction the judge applied to interpret the relevant statute.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and issues a decision on the matter.

A.R.S. § 33-1804

The specific Arizona Revised Statute at the center of the legal dispute. It mandates that meetings of a members’ association, its board of directors, and any “regularly scheduled committee meetings” must be open to all members of the association.

Cross-examination

A phase during the hearing where a party or their representative questions a witness from the opposing side. Petitioner Moselle underwent cross-examination during the April 20, 2018, rehearing.

Department

The Arizona Department of Real Estate, the state agency with which the Petitioner filed his initial petition and which has jurisdiction to hear disputes between homeowners and condominium owners associations.

An abbreviation for Desert Mountain Master Association, the Respondent in the case and the homeowners association for a planned community in Scottsdale, Arizona.

Open Meetings Law

The legal requirement, as outlined in A.R.S. § 33-1804, that certain meetings of a homeowners association must be open to all members, who must be permitted to attend and speak.

Petitioner

The party who initiates a legal action by filing a petition. In this case, the petitioner was homeowner Gary W. Moselle.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed. In this case, the respondent was the Desert Mountain Master Association (DMMA).

Statutory Construction

The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain legislative intent, first by looking at the plain language of the statute’s text.

Your HOA Can Legally Hold Secret Committee Meetings. Here’s How.

Most homeowners operate under a reasonable assumption: meetings that concern their community association should be open for them to attend. Transparency is a cornerstone of trust between residents and their HOA board. But what if some of those meetings, like committee meetings, could be held in private, entirely legally? The answer, revealed in a contentious Arizona case, lies in a two-word loophole that every homeowner should understand.

A legal case from Scottsdale, Arizona, Moselle vs. Desert Mountain Master Association, hinged on this very issue. It revealed a surprising and important nuance in the law, showing how specific wording can create exceptions to the general rule of open governance.

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1. The “Regularly Scheduled” Loophole That Allows for Closed Meetings

The central conflict of the case began when a homeowner, Gary Moselle, was barred from attending a Communications Committee meeting for his HOA, the Desert Mountain Master Association (DMMA). He filed a petition, arguing this action violated Arizona’s open meeting law for planned communities.

But the homeowner’s argument ran into a wall: the precise text of the law. The Administrative Law Judge’s ruling hinged on the wording of A.R.S. § 33-1804(A), which mandates openness for “any regularly scheduled committee meetings.” The judge found that the Communications Committee meeting was legally closed because it was not “regularly scheduled.”

Everything came down to the court’s interpretation of two words: “regularly scheduled.”

• The Homeowner’s Argument: Mr. Moselle contended that “regularly scheduled” simply meant “scheduled in a normal fashion.”

• The Court’s Conclusion: The HOA and the judge determined that the phrase means meetings that “occur at regular intervals,” such as monthly, quarterly, or annually.

The evidence supported the court’s conclusion. The DMMA Communications committee had only met four times in 2016 and 2017. This ad-hoc pattern was crucial evidence that the meetings were not “regularly scheduled” in the way the law required.

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2. Why a Law’s General Policy Doesn’t Always Overrule Its Specific Text

The petitioner argued that the law’s explicit policy statement, which strongly favors open meetings, should have been the guiding principle. He pointed to the text of A.R.S. § 33-1804(F):

It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly… and shall construe any provision of this section in favor of open meetings.

The judge’s conclusion illustrates a fundamental principle of legal interpretation: the specific almost always trumps the general. Despite the clear declaration of policy, the judge found that it did not override the more precise provision in the law. The general policy favoring open meetings could not change the fact that A.R.S. § 33-1804(A) explicitly limits the open meeting requirement to only “regularly scheduled” committee meetings.

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3. A Petitioner’s Own Words Undercut His Argument

The case took a surprising turn, however, when the petitioner himself handed the association its strongest piece of evidence. While trying to make a point about other committees within the DMMA, Mr. Moselle stated that five of them “meet at the request of the chair and they’re not regularly scheduled.”

This statement was a moment of legal irony that proved devastating to his case. The judge noted in the final decision that the petitioner’s own language aligned perfectly with the court’s ultimate interpretation. In a formal hearing, Mr. Moselle inadvertently defined the key term against his own interest, drawing a clear distinction between meetings called on an as-needed basis (“at the request of the chair”) and those that are “regularly scheduled.” This admission provided the exact plain-language interpretation the judge needed to resolve the ambiguity in the case at hand, significantly weakening the petitioner’s entire position.

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Conclusion: A Lesson in Legal Precision

The ultimate lesson from this case is that while homeowner transparency laws are powerful, their protections are defined by precise legal wording. Seemingly small details can have significant consequences. In this Arizona case, the distinction between ad-hoc meetings called as needed and those that occur at regular, predictable intervals was the deciding factor that allowed a committee meeting to be held behind closed doors.

This raises a critical question for homeowners and boards alike: Does this legal distinction provide necessary flexibility for informal committee work, or is it a loophole that ultimately undermines the spirit of open governance in our communities?

Case Participants

Petitioner Side

  • Gary W. Moselle (petitioner)
    Appeared on his own behalf; Chair of the Communications Committee

Respondent Side

  • Curtis Ekmark (respondent attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Charles Markle (respondent attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Felicia Del Sol (staff)
    Served order upon parties

Charles Mandela vs. Blue Ridge Estates Homeowner Association

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Case Summary

Case ID 18F-H1817006-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-12-06
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the homeowner's petition, finding that the HOA did not violate its CC&Rs by allowing play structures on properties that already contained a detached garage or shed, because play structures are not easily convertible into a second residence, which was the underlying concern of the relevant CC&R section.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles Mandela Counsel —
Respondent Blue Ridge Estates Homeowner Association Counsel Brian C. Axt, Esq.

Alleged Violations

CC&Rs § 3.1(a); Architectural Committee Aligned Standard 3(D)

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA did not violate its CC&Rs by allowing play structures on properties that already contained a detached garage or shed, because play structures are not easily convertible into a second residence, which was the underlying concern of the relevant CC&R section.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated CC&R § 3.1. The ALJ determined that the HOA correctly clarified the status of play structures through an amendment to the Architectural Committee's regulations.

Key Issues & Findings

Alleged violation of CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) regarding allowing play structures (swing sets, treehouses) when another detached structure (garage or shed) is present.

Petitioner alleged that the Respondent HOA violated CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) by permitting members to construct play structures (swingsets, treehouses, etc.) on properties that already contained one detached structure (garage or shed), arguing that the rules allowed only one detached structure of any type.

Orders: Petitioner's petition is denied because he failed to establish that CC&R § 3.1 prohibits play structures under any circumstances. All play structures that the Architectural Committee has previously approved are allowed to remain, and the Architectural Committee may consider and grant future Play Structure Approval Requests.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

Topics: HOA governance, CC&R interpretation, detached structures, play structures, Architectural Committee regulations, burden of proof
Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

18F-H1817006-REL Decision – 604710.pdf

Uploaded 2026-04-24T11:07:52 (155.4 KB)

18F-H1817006-REL Decision – 604710.pdf

Uploaded 2026-01-23T17:21:47 (155.4 KB)

Briefing Document: Mandela v. Blue Ridge Estates Homeowner Association (No. 18F-H1817006-REL)

Executive Summary

This document synthesizes the findings of an Administrative Law Judge (ALJ) decision regarding a dispute between a homeowner, Charles Mandela (“Petitioner”), and the Blue Ridge Estates Homeowner Association (“Respondent”). The core issue was whether the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by permitting homeowners to install play structures (e.g., swing sets, treehouses) on lots that already contained another detached structure, such as a garage or shed.

The Petitioner argued that the HOA had historically enforced a strict “one detached structure” rule and that its recent allowance of play structures constituted a violation of CC&R § 3.1. In contrast, the Respondent contended that the underlying intent of the CC&Rs was to prevent secondary residential dwellings, not to prohibit recreational structures consistent with a family-oriented community. The HOA asserted it had properly amended its Architectural Committee regulations, not the CC&Rs, to clarify this distinction.

The ALJ ruled decisively in favor of the Respondent HOA. The central finding was that the intent of the restrictive covenant was to maintain the single-family residential character of the community. Because play structures cannot be easily converted into secondary residences, they are not inconsistent with this intent. The ALJ concluded that the HOA was not required to amend the CC&Rs (which requires a 75% member vote) but acted within its authority to amend its rules and regulations via a simple board vote. The Petitioner’s petition was denied.

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Core Allegation: The Petitioner alleged that the Respondent HOA violated CC&R § 3.1(a) and Architectural Committee Aligned Standard 3(D) by allowing members to build play structures, swing sets, or treehouses on properties that already had another detached structure like a garage or shed.

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

The Petitioner’s case was built on the premise of a long-standing, strict interpretation of the “one detached structure” rule.

• Core Argument: For 18 years, the Respondent interpreted CC&R § 3.1 to permit only one detached structure on any given lot, regardless of its type.

• Evidence and Testimony:

◦ Historical Enforcement: Testified that between 2002 and 2016, the HOA enforced this rule by removing nine non-compliant structures, including a gazebo, a playhouse, an observation deck, and a zipline structure.

◦ 2006 Legal Opinion: Submitted a February 7, 2006, letter from the law firm Carpenter Hazlewood, PLC, which opined on the ambiguity of CC&R § 3.1. The letter stated, “It still appears that only one structure (garage or shed) is permitted,” and supported the HOA’s ability to “enforce the ‘one detached structure’ requirement.” The letter did not specifically mention play structures.

◦ Invalid Approval Form: Presented a “Play Structure Approval Request” form he had drafted while on the board. This form incorrectly stated that the Board of Directors had voted on June 25, 2016, “to adopt changes to the CCR’s [sic], which will allow play structures.” Petitioner argued this was invalid because changing the CC&Rs requires a 75% vote of the membership, which was not obtained.

◦ Ancillary Documents: Submitted documents related to a housing discrimination claim filed by the HOA’s current president, Joseph Hancock, and a letter concerning another member. Petitioner testified these matters involved play structures, though the documents themselves did not mention CC&R § 3.1.

Respondent’s Position (Blue Ridge Estates HOA)

The Respondent’s defense centered on the purpose of the CC&Rs and its authority as a board to clarify and amend its own rules and regulations.

• Core Argument: The HOA did not violate the CC&Rs because the intent of the relevant articles is to prohibit secondary residential dwellings, not recreational structures suitable for a community intended to be a “uniquely planned recreation property.”

• Evidence and Testimony:

◦ Community Status: There are currently 16 swingsets or play structures within the 193-lot development. The HOA president, Joseph Hancock, testified he has a swingset used by his children, grandchildren, and neighbors.

◦ Legal Counsel: The HOA retained the firm of Poli & Ball, PLC, which opined that because the community is for recreation and family use, “[p]lay structures are perfectly consistent with recreation and family use.” The firm advised that the Architectural Committee’s regulations could be changed to reflect this without amending the CC&Rs. Another law firm, Carpenter Hazlewood, generally agreed with this opinion.

◦ Correction of Clerical Error: Mr. Hancock testified that the form submitted by the Petitioner contained a typographical error. The board’s intent in its June 25, 2016, vote was to amend the Architectural Committee’s regulations, not the CC&Rs.

◦ Board Meeting Minutes: The HOA submitted minutes from board meetings in December 2016 and October 2017. These minutes document the board’s discovery of the error on the website form and subsequent votes to formally clarify that the change was to the rules and regulations, not the CC&Rs, thereby ratifying its decision.

◦ Amended Approval Form: Respondent submitted the corrected “Play Structure Approval Request” form, which states, “Per the modified Rules and Regulations dated April 6, 2016, this form must be submitted to Architectural Committee for approval of any Play Structure.”

Governing Rules and Covenants

The dispute hinged on the interpretation and interplay of several key provisions in the community’s governing documents.

Document / Section

Key Provision

CC&R § 3.1

“No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage… No garage or shed shall be built prior to the issuance of a Coconino County building permit for the construction of a Single Family Residence.”

Architectural Regulation 3(D)

“One detached structure may, with Architectural Committee approval, be constructed on a property. The residence must be constructed and completed before the detached structure is built.”

CC&R § 4.2

“By a majority vote of the Board, the Association may, from time to time… adopt, amend and repeal rules and regulations to be known as the ‘Rules and Regulations.’”

CC&R § 12.2

Amending the Declaration of CC&Rs requires “the affirmative vote… or written consent of Members owning at least seventy-five percent (75%) of all Lots.”

Administrative Law Judge’s Findings and Legal Rationale

The ALJ found that the Petitioner failed to meet his burden of proof and that the Respondent acted properly within its authority.

• Intent of the Covenant: The Judge determined that CC&R Article III is fundamentally “concerned with keeping Respondent single-family residential by prohibiting structures and vehicles that could be used as a second residential dwelling on a lot.” This interpretation is supported by other rules in the article prohibiting mobile homes and clarifying that “If you can live/sleep in it, you cannot park it” in the development.

• Status of Play Structures: The decision concludes that a play structure “cannot be easily converted into a second residence.” Therefore, permitting a play structure in addition to a garage or shed is not inconsistent with the primary purpose of CC&R § 3.1.

• Board Authority vs. Member Vote: Because allowing play structures was not inconsistent with the CC&Rs, the Respondent was not required to amend the CC&Rs through a 75% member vote. Instead, the Board was empowered by CC&R § 4.2 to “amend the Architectural Committee’s regulations to provide clarification on the status of play structures” through a majority vote of the Board.

• History of Enforcement: The Judge found that the Petitioner failed to establish a uniform history of enforcement against play structures. Rather, “it appears that the status of play structures, swingsets, and tree houses has been unsettled and the subject of some contention,” partly due to the Petitioner’s own advocacy.

• Conclusion: The Respondent properly resolved the ambiguity by amending its regulations.

Final Order and Implications

• Decision: The petition was denied because the Petitioner did not establish that CC&R § 3.1 prohibits play structures under any circumstances.

• Outcome for the Community:

1. The HOA’s amendment of its rules to explicitly permit play structures was deemed valid.

2. All play structures previously approved by the Architectural Committee are allowed to remain on members’ properties.

3. The Architectural Committee is authorized to consider and approve future Play Structure Approval Requests that are submitted in accordance with the established regulations.

Study Guide for Administrative Law Judge Decision No. 18F-H1817006-REL

Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three sentences, based on the provided source document.

1. Who were the primary parties in case No. 18F-H1817006-REL, and what was their relationship?

2. What specific violation did the Petitioner, Charles Mandela, allege against the Respondent?

3. What is the legal standard of proof required in this case, and which party bears the initial burden?

4. According to the CC&Rs, what is the procedural difference between amending the CC&Rs and amending the “Rules and Regulations”?

5. What was the Petitioner’s primary evidence to support his claim that the HOA historically enforced a “one detached structure” rule?

6. How did the Respondent, Blue Ridge Estates HOA, legally justify its decision to permit play structures even on lots that already had a detached garage or shed?

7. How did the Respondent explain the document from its website which stated that the Board had voted to “adopt changes to the CCR’s”?

8. What did the law firm Poli & Ball conclude regarding the permissibility of play structures within the community?

9. What did Administrative Law Judge Diane Mihalsky determine was the primary intent of Article III of the CC&Rs?

10. What was the final Recommended Order issued by the Administrative Law Judge in this case?

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Quiz Answer Key

1. The primary parties were the Petitioner, Charles Mandela, and the Respondent, Blue Ridge Estates Homeowner Association. Mr. Mandela is a homeowner within the Blue Ridge Estates development and a member of the homeowners’ association.

2. The Petitioner alleged that the Respondent violated CC&Rs § 3.1(a) and Architectural Committee regulation 3(D). He claimed the HOA wrongly allowed members to build play structures, swing sets, or treehouses on their properties when another detached structure, such as a garage or shed, already existed.

3. The legal standard is “preponderance of the evidence,” which means the evidence must convince the judge that a contention is more probably true than not. The Petitioner, Charles Mandela, bears the initial burden of proof to establish that a violation occurred.

4. To amend the CC&Rs (the Declaration), an affirmative vote or written consent from members owning at least 75% of all lots is required. In contrast, the Board of Directors can adopt, amend, or repeal “Rules and Regulations” by a simple majority vote of the Board.

5. The Petitioner testified that between 2002 and 2016, the HOA removed nine non-compliant structures, including a gazebo and a playhouse. He also submitted a 2006 letter from the law firm Carpenter Hazlewood, which opined that the HOA could enforce a “one detached structure” requirement.

6. The Respondent argued that the intent of the CC&Rs was to prevent second residential dwellings on a lot, not to prohibit recreational items consistent with a family community. Therefore, the Board acted within its authority under CC&R § 4.2 to amend the Architectural Committee’s regulations to clarify that play structures are permitted.

7. The Respondent’s president, Joseph Hancock, testified that the wording was a typographical error made by the previous Chair of the Architectural Committee (the Petitioner). Board meeting minutes from December 2016 and October 2017 were submitted as evidence to show the Board’s actual intent was to modify the rules and regulations, not the CC&Rs.

8. The Poli & Ball law firm opined that play structures are “perfectly consistent with recreation and family use” in a community intended to be a planned recreation property. The firm concluded that the HOA could change the Architectural Committee’s regulations to allow them as long as the change was consistent with the CC&Rs.

9. The Judge concluded that the purpose of Article III is to keep the community single-family residential by prohibiting structures and vehicles that could be used as a second dwelling. Since a play structure cannot be easily converted into a second residence, allowing one did not violate the intent of the CC&Rs.

10. The Judge ordered that the Petitioner’s petition be denied. The Judge found that the Petitioner had not established that CC&R § 3.1 prohibits play structures under any circumstances, and that the HOA had properly resolved the issue by amending its regulations.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each, drawing upon specific facts, arguments, and legal principles from the source document.

1. Discuss the critical distinction between amending the community’s CC&Rs and amending the Architectural Committee’s regulations. Explain how this distinction became the central pivot upon which the entire case turned.

2. Analyze the evidence presented by both the Petitioner and the Respondent. Evaluate the strengths and weaknesses of each party’s exhibits and testimony, and explain why the Administrative Law Judge ultimately found the Respondent’s evidence more persuasive.

3. The “Conclusions of Law” section discusses the legal principle of interpreting restrictive covenants based on the “intent of the parties.” How did Judge Mihalsky apply this principle to CC&R § 3.1, and how did the community’s stated purpose as a “uniquely planned recreation property” influence this interpretation?

4. Charles Mandela, the Petitioner, was a former board member and president of the Architectural Committee who drafted one of the key documents in question. Discuss how his past involvement in HOA governance may have shaped his legal position and the evidence he presented.

5. Trace the timeline of the “play structure” controversy as detailed in the hearing evidence, from the 2015 discrimination claim to the “clarification vote” in October 2017. How does this sequence of events illustrate the challenges of community governance and rule interpretation within a homeowners’ association?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings at government agencies. In this case, the ALJ from the Office of Administrative Hearings heard the dispute between the homeowner and the HOA.

Architectural Committee

A committee within the homeowners’ association responsible for approving any construction, alteration, or improvement to the exterior of any property to ensure it complies with community standards.

Burden of Proof

The obligation of a party in a legal case to prove their allegations. In this hearing, the Petitioner had the burden to prove his claims by a preponderance of the evidence.

CC&Rs (Covenants, Conditions, and Restrictions)

A legally binding document that governs a planned community or subdivision. It outlines the rights and obligations of the homeowners and the homeowners’ association.

Declaration

The formal legal document that creates the homeowners’ association and its CC&Rs. In this case, amending the Declaration required a 75% vote of the members.

Detached Structure

A building on a property that is separate from the main residence. The dispute centered on whether play structures counted as the “one detached structure” permitted by the CC&Rs.

Improvements

A broad term defined in the CC&Rs (§ 1.17) to include buildings, garages, fences, walls, landscaping, and all other structures of every type and kind on a property.

Jurisdiction

The official power to make legal decisions and judgments. The judge noted that if Title 33 did not apply, the Office of Administrative Hearings would lack jurisdiction to hear the case.

Petitioner

The party who files a petition initiating a legal action. In this case, homeowner Charles Mandela.

Preponderance of the Evidence

The standard of proof in most civil cases. It requires the trier of fact (the judge) to be convinced that a claim is more probably true than not.

Respondent

The party against whom a petition is filed. In this case, the Blue Ridge Estates Homeowner Association.

Restrictive Covenant

A provision in a deed or CC&Rs that limits the use of the property. The “one detached structure” rule is an example of a restrictive covenant.

Single Family Residential Use

The designated purpose of the properties in Blue Ridge Estates, meaning they are to be used exclusively as private homes for single families, not for commercial or multi-family dwelling purposes.

Briefing Document: Mandela v. Blue Ridge Estates Homeowner Association (No. 18F-H1817006-REL)

Executive Summary

This document synthesizes the findings of an Administrative Law Judge (ALJ) decision regarding a dispute between a homeowner, Charles Mandela (“Petitioner”), and the Blue Ridge Estates Homeowner Association (“Respondent”). The core issue was whether the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by permitting homeowners to install play structures (e.g., swing sets, treehouses) on lots that already contained another detached structure, such as a garage or shed.

The Petitioner argued that the HOA had historically enforced a strict “one detached structure” rule and that its recent allowance of play structures constituted a violation of CC&R § 3.1. In contrast, the Respondent contended that the underlying intent of the CC&Rs was to prevent secondary residential dwellings, not to prohibit recreational structures consistent with a family-oriented community. The HOA asserted it had properly amended its Architectural Committee regulations, not the CC&Rs, to clarify this distinction.

The ALJ ruled decisively in favor of the Respondent HOA. The central finding was that the intent of the restrictive covenant was to maintain the single-family residential character of the community. Because play structures cannot be easily converted into secondary residences, they are not inconsistent with this intent. The ALJ concluded that the HOA was not required to amend the CC&Rs (which requires a 75% member vote) but acted within its authority to amend its rules and regulations via a simple board vote. The Petitioner’s petition was denied.

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Core Allegation: The Petitioner alleged that the Respondent HOA violated CC&R § 3.1(a) and Architectural Committee Aligned Standard 3(D) by allowing members to build play structures, swing sets, or treehouses on properties that already had another detached structure like a garage or shed.

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

The Petitioner’s case was built on the premise of a long-standing, strict interpretation of the “one detached structure” rule.

• Core Argument: For 18 years, the Respondent interpreted CC&R § 3.1 to permit only one detached structure on any given lot, regardless of its type.

• Evidence and Testimony:

◦ Historical Enforcement: Testified that between 2002 and 2016, the HOA enforced this rule by removing nine non-compliant structures, including a gazebo, a playhouse, an observation deck, and a zipline structure.

◦ 2006 Legal Opinion: Submitted a February 7, 2006, letter from the law firm Carpenter Hazlewood, PLC, which opined on the ambiguity of CC&R § 3.1. The letter stated, “It still appears that only one structure (garage or shed) is permitted,” and supported the HOA’s ability to “enforce the ‘one detached structure’ requirement.” The letter did not specifically mention play structures.

◦ Invalid Approval Form: Presented a “Play Structure Approval Request” form he had drafted while on the board. This form incorrectly stated that the Board of Directors had voted on June 25, 2016, “to adopt changes to the CCR’s [sic], which will allow play structures.” Petitioner argued this was invalid because changing the CC&Rs requires a 75% vote of the membership, which was not obtained.

◦ Ancillary Documents: Submitted documents related to a housing discrimination claim filed by the HOA’s current president, Joseph Hancock, and a letter concerning another member. Petitioner testified these matters involved play structures, though the documents themselves did not mention CC&R § 3.1.

Respondent’s Position (Blue Ridge Estates HOA)

The Respondent’s defense centered on the purpose of the CC&Rs and its authority as a board to clarify and amend its own rules and regulations.

• Core Argument: The HOA did not violate the CC&Rs because the intent of the relevant articles is to prohibit secondary residential dwellings, not recreational structures suitable for a community intended to be a “uniquely planned recreation property.”

• Evidence and Testimony:

◦ Community Status: There are currently 16 swingsets or play structures within the 193-lot development. The HOA president, Joseph Hancock, testified he has a swingset used by his children, grandchildren, and neighbors.

◦ Legal Counsel: The HOA retained the firm of Poli & Ball, PLC, which opined that because the community is for recreation and family use, “[p]lay structures are perfectly consistent with recreation and family use.” The firm advised that the Architectural Committee’s regulations could be changed to reflect this without amending the CC&Rs. Another law firm, Carpenter Hazlewood, generally agreed with this opinion.

◦ Correction of Clerical Error: Mr. Hancock testified that the form submitted by the Petitioner contained a typographical error. The board’s intent in its June 25, 2016, vote was to amend the Architectural Committee’s regulations, not the CC&Rs.

◦ Board Meeting Minutes: The HOA submitted minutes from board meetings in December 2016 and October 2017. These minutes document the board’s discovery of the error on the website form and subsequent votes to formally clarify that the change was to the rules and regulations, not the CC&Rs, thereby ratifying its decision.

◦ Amended Approval Form: Respondent submitted the corrected “Play Structure Approval Request” form, which states, “Per the modified Rules and Regulations dated April 6, 2016, this form must be submitted to Architectural Committee for approval of any Play Structure.”

Governing Rules and Covenants

The dispute hinged on the interpretation and interplay of several key provisions in the community’s governing documents.

Document / Section

Key Provision

CC&R § 3.1

“No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage… No garage or shed shall be built prior to the issuance of a Coconino County building permit for the construction of a Single Family Residence.”

Architectural Regulation 3(D)

“One detached structure may, with Architectural Committee approval, be constructed on a property. The residence must be constructed and completed before the detached structure is built.”

CC&R § 4.2

“By a majority vote of the Board, the Association may, from time to time… adopt, amend and repeal rules and regulations to be known as the ‘Rules and Regulations.’”

CC&R § 12.2

Amending the Declaration of CC&Rs requires “the affirmative vote… or written consent of Members owning at least seventy-five percent (75%) of all Lots.”

Administrative Law Judge’s Findings and Legal Rationale

The ALJ found that the Petitioner failed to meet his burden of proof and that the Respondent acted properly within its authority.

• Intent of the Covenant: The Judge determined that CC&R Article III is fundamentally “concerned with keeping Respondent single-family residential by prohibiting structures and vehicles that could be used as a second residential dwelling on a lot.” This interpretation is supported by other rules in the article prohibiting mobile homes and clarifying that “If you can live/sleep in it, you cannot park it” in the development.

• Status of Play Structures: The decision concludes that a play structure “cannot be easily converted into a second residence.” Therefore, permitting a play structure in addition to a garage or shed is not inconsistent with the primary purpose of CC&R § 3.1.

• Board Authority vs. Member Vote: Because allowing play structures was not inconsistent with the CC&Rs, the Respondent was not required to amend the CC&Rs through a 75% member vote. Instead, the Board was empowered by CC&R § 4.2 to “amend the Architectural Committee’s regulations to provide clarification on the status of play structures” through a majority vote of the Board.

• History of Enforcement: The Judge found that the Petitioner failed to establish a uniform history of enforcement against play structures. Rather, “it appears that the status of play structures, swingsets, and tree houses has been unsettled and the subject of some contention,” partly due to the Petitioner’s own advocacy.

• Conclusion: The Respondent properly resolved the ambiguity by amending its regulations.

Final Order and Implications

• Decision: The petition was denied because the Petitioner did not establish that CC&R § 3.1 prohibits play structures under any circumstances.

• Outcome for the Community:

1. The HOA’s amendment of its rules to explicitly permit play structures was deemed valid.

2. All play structures previously approved by the Architectural Committee are allowed to remain on members’ properties.

3. The Architectural Committee is authorized to consider and approve future Play Structure Approval Requests that are submitted in accordance with the established regulations.

Case Participants

Petitioner Side

  • Charles Mandela (petitioner)
    Appeared and testified on his own behalf; previously served as president of the Architectural Committee.

Respondent Side

  • Brian C. Axt (attorney)
    Resnick & Louis, P.C.
    Represented Blue Ridge Estates Homeowner Association.
  • Joseph Hancock (board member)
    Blue Ridge Estates Homeowner Association
    Board's president; presented testimony/witness for Respondent.
  • Jason Miller (counsel)
    Carpenter Hazlewood
    Provided an email opinion supporting the Respondent's position.

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

John Shields vs. Will Rogers Equestrian Ranch

Posted on by

Case Summary

Case ID 17F-H1717034-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-02-26
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John L. Shields Counsel —
Respondent Will Rogers Equestrian Ranch Counsel Maria R. Kupillas

Alleged Violations

CC&R § 6.2(A)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove the HOA violated its CC&Rs by approving the wall extension, as the HOA’s approval duties were limited to aesthetic considerations under CC&R § 7.2 and did not extend to enforcing or ensuring adjoining owner approval required by CC&R § 6.2(A).

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent erroneously approved the proposal, as Respondent's duties under CC&R § 7.2 did not require considering adjoining neighbor approval specified in CC&R § 6.2(A).

Key Issues & Findings

Alleged violation of CC&Rs by HOA improperly approving a neighbor's block wall extension without adjoining owner's approval.

Petitioner alleged that the Respondent HOA violated CC&R § 6.2(A) by approving a neighbor's block wall extension that served as a party wall because Petitioner, the adjoining owner, had not approved the wall. Respondent argued their approval duties under CC&R § 7.2 only concerned aesthetics, not ensuring neighbor approval.

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

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01
  • CC&R § 6.2(A)
  • CC&R § 7.2

Analytics Highlights

Topics: HOA, CC&R, Architectural Control Committee, Fence, Party Wall, Rehearing, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199.01
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

17F-H1717034-REL Decision – 619560.pdf

Uploaded 2026-04-24T11:05:20 (90.8 KB)

17F-H1717034-REL Decision – 592935.pdf

Uploaded 2026-04-24T11:05:24 (115.2 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Shields v. Will Rogers Equestrian Ranch

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in Case No. 17F-H1717034-REL-RHG, dated February 26, 2018. The central issue was a petition filed by homeowner John L. Shields against the Will Rogers Equestrian Ranch Homeowners’ Association (HOA), alleging the HOA improperly approved a wall extension built by his neighbor, Joe Johnson, without Mr. Shields’ required consent.

The petition was ultimately dismissed. The Administrative Law Judge (ALJ) concluded that the petitioner, Mr. Shields, failed to establish by a preponderance of the evidence that the HOA had violated its Covenants, Conditions, and Restrictions (CC&Rs). The decision rests on a critical distinction between the responsibilities of a homeowner and the responsibilities of the HOA under separate articles of the CC&Rs. The ALJ determined that the obligation to secure an adjoining neighbor’s approval for a wall alteration (under CC&R § 6.2) falls exclusively on the homeowner undertaking the project. In contrast, the HOA’s duty (under CC&R § 7.2) is limited to an aesthetic review of the proposed alteration, which it conducted appropriately. The HOA had no legal obligation to enforce or verify neighbor-to-neighbor approval.

I. Case Overview

Case Name

John L. Shields (Petitioner) vs. Will Rogers Equestrian Ranch (Respondent)

Case Number

17F-H1717034-REL-RHG

Jurisdiction

Office of Administrative Hearings, Phoenix, Arizona

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Date of Decision

February 26, 2018

Core Dispute

The petitioner alleged the HOA violated CC&R § 6.2(A) by approving a neighbor’s approximately 5’ x 6’ block wall extension without the petitioner’s consent.

Final Outcome

The petition was dismissed, with no action required of the respondent HOA.

II. Petitioner’s Claim and Arguments

John L. Shields, a homeowner at 20431 E. Bronco Drive within the Will Rogers Equestrian Ranch development, filed a petition against the HOA concerning a wall extension built by his next-door neighbor, Joe Johnson.

• Core Allegation: After vacillating on the specifics of his complaint during the hearing, Mr. Shields firmly asserted that his single issue was that the HOA improperly approved Mr. Johnson’s proposal to build a block wall extension and move his gate forward.

• Basis of Claim: The petitioner argued that under CC&R § 6.2, the HOA should have withheld its approval because Mr. Johnson had not demonstrated that he had first obtained Mr. Shields’ approval for the wall extension between their properties.

• Evidence and Testimony: Mr. Shields denied ever having approved the wall. He submitted a photograph he had taken from his front porch and testified that the block wall extension “was an eyesore.”

III. Respondent’s Position and Evidence

The Will Rogers Equestrian Ranch HOA, represented by board president Kristi Hancock, denied all complaint items and argued its actions were consistent with the governing CC&Rs.

• Basis of Approval: The HOA contended that its approval was based solely on the criteria outlined in CC&R § 7.2. The board, acting as the Architectural Control Committee, reviewed Mr. Johnson’s proposal for its aesthetic qualities and consistency with other properties in the development.

• Aesthetic Review: Ms. Hancock testified that the board inspected other wall extensions and gates and found Mr. Johnson’s proposal to be “aesthetically pleasing and consistent with the other properties.”

• Neighbor Consent Issue: The HOA acknowledged its awareness of Mr. Shields’ objection to the wall after it was built. However, Ms. Hancock testified that the board’s understanding of whether Mr. Shields had approved the wall before construction was unclear. She stated that “at least four witnesses had stated that they heard Petitioner either actually approve of or fail to state an objection to the block wall extension while, in Petitioner’s presence, Mr. Johnson discussed having the block wall extension built.”

• Separation of Duties: The HOA’s position was that its duty under § 7.2 was distinct from the homeowner’s duty under § 6.2. The HOA was not responsible for obtaining or verifying neighbor approval.

IV. Chronology of Key Events

1. October 13, 2016 (approx.): Mr. Johnson has the block wall extension built without first obtaining approval from the HOA’s board or committee.

2. October 16, 2016 (approx.): Mr. Shields expresses his disapproval of the newly built wall to Mr. and Mrs. Johnson.

3. November 2, 2016 (approx.): Mr. Johnson retroactively submits his proposal for the wall extension and a plan to move his gate forward to the Architectural Control Committee for approval.

4. November 2016: The HOA’s newly elected board meets as the Committee and verbally approves Mr. Johnson’s wall but advises him that “he will need to seek neighboring property owner’s approval.”

5. January 2017: The board formally approves Mr. Johnson’s proposal for the wall extension and gate move.

6. May 3, 2017 (approx.): Mr. Shields files a single-issue petition with the Arizona Department of Real Estate.

7. September 27, 2017: An initial hearing is held, and Administrative Law Judge Diane Mihalsky dismisses the petition.

8. December 5, 2017: The Real Estate Commissioner grants Mr. Shields’ request for a rehearing based on his claims of legal errors and judicial misconduct.

9. February 5, 2018: A rehearing is held before Administrative Law Judge Tammy L. Eigenheer.

V. Analysis of Covenants, Conditions, and Restrictions (CC&Rs)

The judge’s decision hinged on the distinct and separate functions of two key CC&R sections.

This section governs alterations to shared fences and walls.

Such Party Walls and Fences shall not be altered, or changed in design, color, material or construction from the original installation made by the Developer without [the] approval of the adjoining Owner(s), if any, and the [Architectural Control] Committee.

• Interpretation: The ALJ interpreted this section as creating two separate approval requirements for the homeowner making the alteration: one from the adjoining owner and one from the Committee. It does not obligate the Committee to enforce the adjoining owner’s approval.

This section defines the scope and limits of the Architectural Control Committee’s power.

No . . . fences . . . shall be commenced [or] erected . . . until the plans and specifications showing the same shall have been submitted to and approved by the Committee. Approval shall not be unreasonably withheld. However, the Committee shall have the right to refuse to approve any Alteration which is not suitable or desirable in their opinion for aesthetic or other reasons…

• Interpretation: The ALJ found that this section limits the Committee’s review to specific criteria, including aesthetics, harmony with surroundings, and effect on neighboring property. It explicitly states that approval “shall not be unreasonably withheld” and does not require the Committee to verify compliance with other CC&Rs or city ordinances.

VI. Judge’s Conclusions of Law and Rationale for Dismissal

The ALJ’s decision to dismiss the petition was based on a clear legal interpretation of the CC&Rs and the petitioner’s failure to meet the burden of proof.

• Distinct and Separate Obligations: The core of the ruling is that the CC&Rs create parallel but separate responsibilities.

1. Homeowner’s Responsibility: The duty to obtain an adjoining neighbor’s approval for a shared wall alteration under § 6.2(A) rests solely with the homeowner performing the work (Mr. Johnson).

2. HOA’s Responsibility: The HOA’s duty under § 7.2 is limited to reviewing the project on its aesthetic merits and consistency within the community.

• Key Legal Finding: The decision explicitly states the separation of these duties:

• Scope of HOA Review: The ALJ affirmed that the HOA’s scope of review was properly limited.

• Failure to Meet Burden of Proof: Because the HOA acted within the authority and limitations defined by CC&R § 7.2, the petitioner failed to prove by a preponderance of the evidence that the HOA had violated its governing documents.

• Other Responsibilities: The decision also noted that the responsibility for ensuring compliance with City of Queen Creek ordinances (related to the gate move) ultimately rested with Mr. Johnson, not the HOA.

VII. Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge ordered that the petition be dismissed.

• No action is required of the Respondent, Will Rogers Equestrian Ranch HOA.

• The decision, issued as a result of a rehearing, is binding on the parties.

• Any appeal must be filed with the superior court within thirty-five days from the date the order was served.

Study Guide: Shields v. Will Rogers Equestrian Ranch

This guide provides a comprehensive review of the Administrative Law Judge Decision in case number 17F-H1717034-REL-RHG, involving John L. Shields and the Will Rogers Equestrian Ranch homeowners’ association. It includes a short-answer quiz to test factual recall, an answer key for verification, essay questions for deeper analysis, and a glossary of key terms as defined and used within the context of the legal decision.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the provided legal decision.

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

2. What was the specific, single-issue claim that the Petitioner, John L. Shields, filed with the Arizona Department of Real Estate on May 3, 2017?

3. What is a “party wall” according to CC&R § 6.2(A), and what specific approval is required to alter one?

4. What was the timeline of the wall extension’s construction and Mr. Johnson’s subsequent submission for approval to the Committee?

5. On what grounds did the Respondent’s board, acting as the Architectural Control Committee, approve Mr. Johnson’s proposal?

6. What was the Petitioner’s central argument for why the Respondent should not have approved Mr. Johnson’s proposal?

7. Why was a rehearing granted after the initial hearing on September 27, 2017?

8. What contradictory evidence did the Respondent’s board consider regarding whether the Petitioner had approved the wall extension before it was built?

9. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this case?

10. What was the final recommended order from Administrative Law Judge Tammy L. Eigenheer, and what was the core legal reasoning for this decision?

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Answer Key

1. The Petitioner is John L. Shields, who owns a home at 20431 E. Bronco Drive. The Respondent is the Will Rogers Equestrian Ranch, a homeowners’ association in Queen Creek, Arizona. Mr. Shields is a member of the Respondent association.

2. The Petitioner alleged that the Respondent violated § 6.2(A) of its Covenants, Conditions, and Restrictions (CC&Rs). The violation claim was based on the Respondent approving a common block wall extension built by his neighbor, Joe Johnson, without the Petitioner’s required approval.

3. According to CC&R § 6.2(A), a “party wall” is a fence constructed upon the back of a lot. To alter or change the design, color, material, or construction of such a wall, approval is required from both the adjoining owner(s) and the Architectural Control Committee.

4. Mr. Johnson had the wall extension built on or about October 13, 2016, without prior approval. He subsequently submitted his proposal to the Committee for approval on or about November 2, 2016.

5. The board approved the proposal based on the criteria in CC&R § 7.2, which required it to consider if the alteration was aesthetically pleasing and harmonious with its surroundings. The board inspected other extensions in the development and found Mr. Johnson’s proposal to be consistent with them.

6. The Petitioner argued that the Respondent’s approval was improper because Mr. Johnson had not demonstrated that he had first obtained the Petitioner’s approval for the block wall extension, which is a stated requirement in CC&R § 6.2.

7. A rehearing was granted by Commissioner Judy Lowe on December 5, 2017. The Petitioner requested it based on claims of errors in the admission or rejection of evidence, other errors of law, and alleged misconduct by the initial Administrative Law Judge that deprived him of a fair hearing.

8. The board knew the Petitioner objected to the wall after it was built. However, the board was also aware of at least four witnesses who stated they heard the Petitioner either actually approve of the extension or fail to object while Mr. Johnson discussed building it in his presence.

9. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. In this case, the Petitioner, John L. Shields, bore the burden of proof to establish his claim by this standard.

10. The judge ordered that the petition be dismissed and that no action was required of the Respondent. The reasoning was that under CC&R § 6.2(A), the responsibility to get an adjoining neighbor’s approval lies with the property owner (Mr. Johnson), not the Respondent, and CC&R § 7.2 only required the Respondent to consider aesthetic factors, which it did.

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Essay Questions

Instructions: The following questions are designed to provoke deeper analysis of the case. Formulate a comprehensive response to each, structuring your answer in a standard essay format.

1. Analyze the distinct responsibilities assigned to the homeowner (Mr. Johnson) and the homeowners’ association (Respondent) by CC&R § 6.2(A) and § 7.2. How did the separation of these duties form the crux of the Administrative Law Judge’s final decision?

2. Discuss the legal standard of “preponderance of the evidence” as it is defined in the decision. Explain why the evidence presented by the Petitioner, including his testimony and photograph of the wall, failed to meet this burden of proof against the Respondent.

3. Examine the role and limitations of the Architectural Control Committee as described in CC&R § 7.2. In your analysis, consider what the committee is required to evaluate, what it is explicitly not responsible for, and the provision that its approval “shall not be unreasonably withheld.”

4. Trace the procedural history of this case, from the initial petition filing to the final order after the rehearing. What does this progression reveal about the administrative hearing process and the grounds upon which a rehearing can be granted?

5. Although the petition was dismissed, the facts indicate that Mr. Johnson built the wall extension before receiving any approval and that the City of Queen Creek later found his plan to move the gate violated city codes. Argue whether the Respondent (the HOA) bears any ethical, if not legal, responsibility in a situation where its approval process is disconnected from neighbor consent and municipal law compliance.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An official, in this case Tammy L. Eigenheer, from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.

Architectural Control Committee (“the Committee”)

A body within the homeowners’ association, in this case comprised of the board members, responsible for reviewing and approving or denying proposed alterations to properties, such as fences, based on aesthetic and other specified criteria.

A.R.S. § 32-2199.01

The Arizona Revised Statute that permits an owner in a planned community to file a petition with the Department of Real Estate concerning violations of community documents.

Burden of Proof

The obligation of a party in a legal case to provide evidence that proves its claim. In this case, the Petitioner bore the burden to prove his claim by a “preponderance of the evidence.”

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set forth the rules for a planned community. This case centers on the interpretation of § 6.2(A) and § 7.2 of the Will Rogers Equestrian Ranch CC&Rs.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Respondent, Will Rogers Equestrian Ranch, is an HOA.

Party Wall

As defined in CC&R § 6.2(A), a fence constructed upon the back of any lot that is shared between adjoining properties. Alterations require approval from the adjoining owner and the Committee.

Petitioner

The party who initiates a legal action or petition. In this case, John L. Shields, a homeowner and member of the Respondent association.

Preponderance of the Evidence

The standard of proof required in this civil administrative hearing. It is defined as evidence that is more convincing and has superior weight, making it more probable that a contention is true than not.

Rehearing

A second hearing of a case, granted in this instance because the Petitioner claimed there were errors of law and misconduct by the judge in the first proceeding that deprived him of a fair hearing.

Respondent

The party against whom a petition is filed. In this case, the Will Rogers Equestrian Ranch homeowners’ association.

4 Surprising Lessons From a Homeowner’s Lawsuit Against His HOA

It’s a scenario many homeowners can imagine: a neighbor erects a new wall along the property line without your consent. Your first instinct is to escalate the issue to your Homeowners’ Association (HOA), assuming it’s their job to enforce the community’s rules. This common assumption—that the HOA is the ultimate authority responsible for mediating all disputes between neighbors—is powerful, but is it always correct?

A real-life administrative court case, Shields v. Will Rogers Equestrian Ranch, provides a valuable case study in the delineation of duties within a planned community, revealing that the answer can be a surprising “no.” This case offers critical insights into the true roles and responsibilities of an HOA. Here are the top four counter-intuitive takeaways from this legal decision that every homeowner should understand.

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1. Your HOA Isn’t a Referee for Neighbor-to-Neighbor Agreements

Mr. Shields sued his HOA because it approved a neighbor’s wall extension that he, the adjoining owner, had not approved. He believed this violated the community’s Covenants, Conditions, and Restrictions (CC&Rs), specifically § 6.2(A), which requires approval from the adjoining owner for such changes.

The Administrative Law Judge, however, found the HOA had no legal duty to enforce this particular rule. The responsibility to secure the neighbor’s approval fell solely on the property owner making the change, not the HOA. The judge’s finding on this point was direct and unambiguous:

CC&R § 6.2(A) required that the property owner, Mr. Johnson, obtain the adjoining property owner’s, Petitioner’s, approval before he built the block wall extension. Respondent [the HOA] had no obligation under CC&R § 6.2(A) to obtain or ensure Petitioner approved the block wall extension.

This ruling clarifies that an HOA’s role is not that of a quasi-judicial body for resolving all private disputes; its enforcement powers are limited to the specific duties enumerated in its governing documents. CC&R § 6.2(A) effectively creates a private right of action between neighbors, which the HOA is not a party to. The HOA’s role is to enforce rules that obligate the homeowner to the association, not necessarily to other homeowners.

2. The Architectural Committee’s Job Is Narrower Than You Think

In its defense, the HOA’s board, acting as the Architectural Control Committee, argued that its review was based on a different rule entirely: CC&R § 7.2. The judge agreed, highlighting the Committee’s very narrow scope of responsibility.

According to the case findings, the Committee’s only legal obligation was to determine if the proposed wall was “aesthetically pleasing and consistent” with other properties in the development. Its review under § 7.2 did not require it to confirm whether the neighbor had obtained Mr. Shields’ approval as mandated by the separate rule. This legal structure isolates the two duties, and the homeowner’s error was conflating them. The HOA’s limited aesthetic review reinforces the conclusion from our first lesson: it is not responsible for policing the separate neighbor-approval requirement. An architectural green light is often purely about community harmony, not a verification of compliance with every other covenant.

3. Building First and Asking Permission Later Creates Confusion

The sequence of events in this case was disorderly, which ultimately clouded the legal issues. From the outset, the petitioner himself “vacillated on whether his issue with Respondent was that it improperly approved Mr. Johnson’s proposal… or that it failed to enforce the requirement that Mr. Johnson had to obtain Petitioner’s approval,” foreshadowing the difficulty in proving a specific violation.

The timeline further illustrates the breakdown in process:

• October 13, 2016: The neighbor, Mr. Johnson, built the wall extension before seeking any approval.

• October 16, 2016: Mr. Shields expressed his disapproval directly to the neighbor.

• November 2, 2016: The neighbor submitted his proposal to the HOA for approval—weeks after the wall was already built.

• November 2016: The HOA Board verbally approved the wall but astutely “advised him that ‘he will need to seek neighboring property owner’s approval.’”

This retroactive process, combined with a dispute clouded by conflicting testimony—four witnesses claimed they heard Mr. Shields either approve of the wall or fail to object—muddied the waters, making it impossible for the petitioner to meet his burden of proof regarding the HOA’s actions. The messiness of the facts directly contributed to the legal failure.

4. The Burden of Proof Rests Entirely on You

In a legal dispute with an HOA, the “burden of proof” falls on the petitioner. Mr. Shields had to establish his case by a “preponderance of the evidence,” which the court defines simply as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Crucially, he had to prove that the HOA specifically violated a statute or a rule within the CC&Rs. It wasn’t enough to demonstrate that his neighbor violated a rule or that the situation felt unjust. He had to prove the HOA failed to perform a duty for which it was explicitly responsible.

The judge ultimately dismissed the petition because Mr. Shields could not meet this burden. He failed to prove the HOA had a duty to deny the application based on his lack of approval. A subjective sense of unfairness is insufficient to meet the legal standard; a petitioner must prove a direct breach of a specified duty by the association.

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Conclusion: Know Your Rules, Not Just Your Rights

The overarching lesson from the Shields case is that CC&Rs are a legal contract with a precise, and sometimes non-obvious, allocation of responsibilities among the homeowner, their neighbors, and the association itself. The HOA is not an all-powerful enforcer but an organization with a defined, and sometimes surprisingly limited, set of duties. Homeowners, in turn, have their own responsibilities—including, at times, enforcing certain rights directly with their neighbors.

Before escalating your next neighborhood issue, have you read the fine print to see who is truly responsible for what?

Case Participants

Petitioner Side

  • John Shields (petitioner)

Respondent Side

  • Maria R. Kupillas (HOA attorney)
    Law Offices of Farley Choate & Bergin
    Represented Respondent Will Rogers Equestrian Ranch
  • Joe Johnson (neighbor/member)
    Lot owner who built the wall extension; Husband of Sandy Johnson
  • Sandy Johnson (neighbor/witness)
    Wife of Joe Johnson; next-door neighbor to Petitioner; testified in initial hearing
  • Dean Kabanuk (board member/witness)
    Will Rogers Equestrian Ranch Board
    Respondent’s board president; testified in initial hearing
  • Kristi Hancock (board member/witness)
    Will Rogers Equestrian Ranch Board
    Attorney; served as VP (Nov 2016-Nov 2017) and President (since Nov 2017); testified in both hearings
  • Brenda Campbell (property manager/witness)
    Will Rogers Equestrian Ranch
    Respondent’s community manager; testified in initial hearing
  • A.J. Denardo (witness)
    Lives near Petitioner; testified in initial hearing regarding Petitioner's tacit approval

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
    Issued the initial Administrative Law Judge Decision (October 11, 2017)
  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Issued the Administrative Law Judge Decision following rehearing (February 26, 2018)
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Granted Petitioner's request for rehearing; decision transmitted to Commissioner
  • Felicia Del Sol (OAH staff)
    Office of Administrative Hearings
    Transmitted the rehearing decision

William Brown vs. Terravita Country Club, Inc.

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Case Summary

Case ID 18F-H1717041-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-10-11
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge denied the Petitioner's request, finding that the Respondent HOA did not violate A.R.S. § 33-1803(B) because the Petitioner received constructive notice of the infraction committee meeting before the penalties and suspension were imposed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Dax R. Watson

Alleged Violations

A.R.S. § 33-1803(B)

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the Respondent HOA did not violate A.R.S. § 33-1803(B) because the Petitioner received constructive notice of the infraction committee meeting before the penalties and suspension were imposed.

Why this result: Petitioner failed to prove that the notice required by A.R.S. § 33-1803(B) must be 'actual notice,' and the evidence supported a finding that Petitioner received constructive notice.

Key Issues & Findings

Prior to imposing reasonable monetary penalties on Petitioner for violations of the declaration, bylaws and rules of the association, Respondent failed to provide Petitioner proper notice in violation of A.R.S. § 33-1803(B).

Petitioner alleged Respondent violated A.R.S. § 33-1803(B) by failing to provide proper notice before imposing penalties ($2,500 fine and $5,000 recoupment of expenses) and indefinitely suspending his membership privileges. The ALJ found that Petitioner received constructive notice of the hearing and that Respondent did not violate the statute.

Orders: Petitioner's petition in this matter is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(B)
  • A.A.C. R2-19-119
  • A.R.S. § 32-2199 et seq.

Analytics Highlights

Topics: notice, constructive notice, monetary penalties, suspension, certified mail, HOA violation
Additional Citations:

  • A.R.S. § 33-1803(B)
  • A.A.C. R2-19-119
  • A.R.S. § 32-2199 et seq.

Video Overview

Audio Overview

Decision Documents

18F-H1717041-REL Decision – 593953.pdf

Uploaded 2026-04-24T11:06:42 (83.6 KB)

18F-H1717041-REL Decision – 593953.pdf

Uploaded 2026-01-23T17:21:22 (83.6 KB)

Administrative Law Judge Decision Analysis: Brown v. Terravita Country Club, Inc.

Executive Summary

This briefing document synthesizes the findings and conclusions of the Administrative Law Judge (ALJ) in case number 18F-H1717041-REL, concerning a dispute between homeowner William Brown (Petitioner) and the Terravita Country Club, Inc. (Respondent). The ALJ ultimately ruled in favor of the Respondent, denying the Petitioner’s claim that the homeowners association violated Arizona state law regarding notification procedures before imposing penalties.

The central issue revolved around the interpretation of “notice” as required by Arizona Revised Statutes (A.R.S.) § 33-1803(B). The Petitioner argued that the statute requires “actual notice”—proof of personal receipt of a notification—which he claimed he never received for a critical disciplinary hearing. The ALJ rejected this argument, establishing that “constructive notice” is legally sufficient. Constructive notice was deemed to have been achieved through the Respondent’s documented efforts to deliver notice via both certified and first-class mail.

A key factor in the decision was the ALJ’s finding that the Petitioner’s testimony was “not credible” regarding his claim that the United States Postal Service (USPS) failed to notify him of a certified letter. The decision upholds the sanctions imposed by the association, which include an indefinite suspension of membership privileges, a $2,500 fine, and the recoupment of $5,000 in related expenses.

Case Background and Timeline

The dispute originated from an incident on November 29, 2016, where Petitioner William Brown was alleged to have left a box of matches at the Respondent’s clubhouse containing papers listing several club properties. This act was interpreted as a threat, leading the Terravita Country Club to initiate disciplinary proceedings. Mr. Brown subsequently filed a petition with the Arizona Department of Real Estate on June 28, 2017, alleging the club failed to provide proper notice before taking action.

Nov 29, 2016

William Brown allegedly leaves a box of matches and notes at the clubhouse.

Dec 2, 2016

The club’s General Manager sends a letter to Brown notifying him of an immediate suspension pending a review.

Dec 8, 2016

Brown signs for and receives the certified mail delivery of the December 2 suspension letter.

Dec 14, 2016

The club sends a letter via first-class and certified mail notifying Brown of a January 9, 2017, Infractions Committee hearing.

Dec 24, 2016

USPS tracking shows the December 14 certified letter is “out for delivery” at Brown’s temporary address in Coldspring, Texas.

Jan 9, 2017

The Infractions Committee meets; Brown does not attend. The Committee sends a letter recommending indefinite suspension and fines.

Jan 12, 2017

The unclaimed December 14 certified letter is returned by the USPS to the club.

Jan 31, 2017

The club’s Board of Directors meets; Brown does not attend. The Board ratifies the sanctions.

Jan 31, 2017

The Board sends a letter to Brown detailing its decision: indefinite suspension, a $2,500 fine, and $5,000 in expense recoupment.

Jun 28, 2017

Brown files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1803.

Sep 22, 2017

The Office of Administrative Hearings holds a hearing on the matter.

Oct 11, 2017

Administrative Law Judge Tammy L. Eigenheer issues the decision, denying Brown’s petition.

Central Legal Issue: The Definition of “Notice”

The core of the legal dispute was the interpretation of the notice requirement within A.R.S. § 33-1803(B), which states, in part:

“After notice and an opportunity to be heard, the board of directors may impose reasonable monetary penalties on members for violations of the declaration, bylaws and rules of the association.”

The Petitioner argued that this statute requires “actual notice,” defined by Black’s Law Dictionary as “[n]otice given directly to, or received personally by, a party.” Because there was no evidence he personally received the December 14, 2016, letter notifying him of the initial hearing, he contended that all subsequent actions by the club were invalid.

The ALJ rejected this interpretation for two primary reasons:

1. Statutory Silence: The governing statute, A.R.S. Title 33, Chapter 16, does not define the term “notice” or specify that it must be “actual notice.”

2. Legal Precedent and Practicality: The ALJ reasoned that requiring actual notice would create an unworkable loophole. A homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing,” thereby thwarting any disciplinary process.

Instead, the ALJ determined that “constructive notice” was sufficient. Constructive notice is defined as “notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The Respondent’s actions of sending notice via multiple methods met this standard.

Key Findings and Rulings

The ALJ made several critical findings of fact and conclusions of law that led to the denial of the petition.

• Burden of Proof: The Petitioner, William Brown, bore the burden of proving by a “preponderance of the evidence” that the Respondent violated the statute. The ALJ concluded he failed to meet this burden.

• Finding on Credibility: The ALJ explicitly stated that the Petitioner’s assertion was not credible. The decision notes: “Petitioner’s assertion that the USPS failed to notify him of the certified letter at any time between December 24, 2016, and January 12, 2017, was not credible.”

• Ruling on Constructive Notice: The ALJ concluded that the Petitioner received constructive notice of the January 9, 2017, Infractions Committee meeting through two distinct actions taken by the Respondent:

1. The certified mailing of the December 14, 2016, letter, for which USPS tracking showed an attempted delivery and which the Petitioner was deemed to have refused.

2. The simultaneous first-class mailing of the same letter, which was “presumably delivered to his temporary address in Coldspring, Texas.”

• Notice for Subsequent Meetings: The ALJ further presumed that the first-class mailing of the January 9, 2017, letter—notifying the Petitioner of the Board of Directors meeting—was also delivered, thus satisfying notice requirements for the final decision-making body.

Final Decision and Sanctions

Based on the foregoing analysis, the Administrative Law Judge ordered that the Petitioner’s petition be denied. The ruling affirmed that Terravita Country Club, Inc. did not violate the provisions of A.R.S. § 33-1803(B).

This decision effectively upholds the sanctions imposed by the club’s Board of Directors on January 31, 2017, which include:

• Indefinite suspension of membership privileges.

• A fine of $2,500.00.

• Recoupment of expenses incurred related to the infraction, totaling $5,000.00.

The order is binding on both parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Study Guide: Brown v. Terravita Country Club, Inc. (Case No. 18F-H1717041-REL)

This guide provides a detailed review of the Administrative Law Judge Decision in the case between Petitioner William Brown and Respondent Terravita Country Club, Inc. It includes a quiz to test comprehension, essay questions for deeper analysis, and a glossary of key terms.

Quiz: Short-Answer Questions

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

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

2. What was the specific statutory violation that William Brown alleged Terravita Country Club had committed?

3. Describe the incident on November 29, 2016, that initiated the actions taken by the Respondent.

4. What was the immediate consequence imposed on the Petitioner by the Respondent’s General Manager on December 2, 2016?

5. How did a temporary change of address filed by the Petitioner affect the delivery of the certified mail notice sent on December 14, 2016?

6. What was the Petitioner’s primary legal argument regarding the type of notice he was required to receive for the disciplinary hearing?

7. On what grounds did the Administrative Law Judge find the Petitioner’s claim about not being notified by the USPS of certified mail to be “not credible”?

8. What two forms of notice did the Administrative Law Judge conclude the Petitioner had received for the January 9, 2017 meeting?

9. What were the final penalties that the Respondent’s Board of Directors imposed on the Petitioner on January 31, 2017?

10. What was the final recommended order from the Administrative Law Judge regarding the Petitioner’s petition?

Answer Key

1. The primary parties were the Petitioner, William Brown, and the Respondent, Terravita Country Club, Inc. Terravita Country Club is a homeowners association in Arizona, and William Brown is a property owner and member of that association.

2. William Brown alleged that the Terravita Country Club violated Arizona Revised Statute (A.R.S.) § 33-1803. The specific issue was that the Respondent failed to provide proper notice before imposing monetary penalties for violations of the association’s rules.

3. On or about November 29, 2016, the Petitioner allegedly left a box of matches at the Respondent’s clubhouse. Inside the box were three pieces of paper with the typed names of three locations: Director’s House, Desert Pavilion, and Country Club Clubhouse.

4. On December 2, 2016, the Respondent’s General Manager, Thomas Forbes, sent the Petitioner a letter immediately suspending him from all rights and privileges of the country club property. This suspension was to remain in effect until the disciplinary process was completed.

5. Because the Petitioner had filed a temporary change of address with the USPS, the certified letter was forwarded to Coldspring, Texas. USPS tracking showed it was “out for delivery” on December 24, 2016, but the Petitioner failed to claim it, and it was eventually returned to the Respondent.

6. The Petitioner argued that A.R.S. § 33-1803(B) required “actual notice” of the January 9, 2017 hearing. He asserted that because there was no evidence he personally received the December 14, 2016 letter, the notice requirement was not met.

7. The decision document does not explicitly state the evidence for why the claim was not credible. However, the Judge’s conclusion implies that the documented evidence from the USPS showing the letter was “out for delivery” in Coldspring, Texas, between December 24, 2016, and January 12, 2017, was more convincing than the Petitioner’s denial.

8. The Judge concluded that the Petitioner received “constructive notice” via the certified mailing for which he refused to sign. Additionally, it was presumed that the first-class mailing of the same letter was delivered to his temporary address in Coldspring, Texas.

9. The Board of Directors suspended the Petitioner’s membership privileges indefinitely. They also imposed a fine of $2,500.00 and sought to recoup $5,000.00 in expenses incurred related to the infraction.

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Respondent did not violate the provisions of A.R.S. § 33-1803(B) regarding notice.

Essay Questions

1. Analyze the legal distinction between “actual notice” and “constructive notice” as defined and applied in this case. Explain why accepting the Petitioner’s argument for requiring “actual notice” would have created a potential loophole, according to the Judge’s reasoning.

2. Trace the complete timeline of events and communications, beginning with the incident on November 29, 2016, and ending with the final decision from the Administrative Law Judge on October 11, 2017. Detail each key date, the action taken, and the method of communication used.

3. Discuss the concept of “preponderance of the evidence” as it applies to this case. Explain what the Petitioner was required to prove and why the Administrative Law Judge ultimately found that he failed to meet this burden.

4. Describe the multi-step disciplinary process employed by the Terravita Country Club. Identify the roles and recommendations of the General Manager, the Infractions Committee, and the Board of Directors in addressing the Petitioner’s alleged violation.

5. Evaluate the Respondent’s communication strategy for notifying the Petitioner of the disciplinary proceedings. Discuss the methods used (first-class mail, certified mail) and explain how these methods became a central point of contention and the ultimate basis for the Judge’s decision.

Glossary of Key Terms

Definition

A.A.C. R2-19-119

A reference to the Arizona Administrative Code rule establishing that the Petitioner bears the burden of proof in this type of proceeding.

A.R.S. § 33-1803(B)

The specific section of Arizona Revised Statutes at the heart of the case. It provides that a homeowners association’s board of directors may impose reasonable monetary penalties on members for violations after providing “notice and an opportunity to be heard.”

Actual Notice

Defined as “[n]otice given directly to, or received personally by, a party.” This was the standard of notice the Petitioner argued was required.

Administrative Law Judge (ALJ)

The presiding official (Tammy L. Eigenheer) in the hearing at the Office of Administrative Hearings who hears evidence, makes findings of fact, and issues a decision.

Board of Directors

The governing body of the Terravita Country Club, Inc. that made the final determination on penalties, including the indefinite suspension and fines imposed on the Petitioner.

Constructive Notice

Defined as “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of” or “notice presumed by law to have been acquired by a person and thus imputed to that person.” The Judge ruled the Petitioner received this type of notice.

Notice

Defined as “[l]egal notification required by law or agreement, or imparted by operation of law as a result of some fact…; definite legal cognizance, actual or constructive, of an existing right or title.” The term is not specifically defined in the relevant state statute (Title 33, Chapter 16).

Petitioner

The party who filed the petition initiating the legal action. In this case, William Brown.

Preponderance of the evidence

The standard of proof the Petitioner was required to meet. It is defined as “[t]he 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.”

Respondent

The party against whom the petition was filed. In this case, Terravita Country Club, Inc.

Terravita Country Club Infractions Committee

A committee within the homeowners association that met on January 9, 2017, to hear evidence regarding the Petitioner’s alleged infraction and make a recommendation to the Board of Directors.

He Ignored a Letter From His HOA. It Cost Him $7,500. Here Are 5 Legal Lessons From His Case.

Introduction: The Dreaded Envelope

It’s a feeling many homeowners know: the sight of a formal, certified letter from the homeowners association (HOA). But for homeowner William Brown, the stakes were far higher than a dispute over landscaping or dues. His troubles began after he allegedly left a box of matches at the country club’s front desk, along with a list of three club properties. The HOA, Terravita Country Club, Inc., interpreted this as an implied threat of arson and took immediate action.

When Mr. Brown ignored the subsequent legal notices, it resulted in an indefinite suspension, a $2,500 fine, and an order to pay $5,000 in expenses. This article distills the official administrative court decision from his case into five surprising and critical legal takeaways that every homeowner should understand.

1. You Can Be Legally Notified—Even If You Never Open the Letter

The core of this case hinged on a crucial legal distinction. The judge’s decision rested on the critical difference between two types of legal notice:

• Actual Notice: “Notice given directly to, or received personally by, a party.”

• Constructive Notice: “Notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.”

Because the HOA sent the meeting notice via both certified and first-class mail, the judge concluded that the homeowner had received “constructive notice.” The certified mail provided a documented attempt at delivery, while the first-class mail carried a legal presumption of delivery. Together, this combination was legally sufficient, and the law presumed Mr. Brown was aware of the meeting. This distinction is a fundamental principle that every property owner must grasp.

2. Dodging Certified Mail Is a Terrible Legal Strategy

The homeowner’s primary argument was that because he never signed for or received the certified letter notifying him of the January 9, 2017 hearing, he could not be held responsible. The judge directly rejected this line of reasoning.

To accept Petitioner’s argument, a homeowner would be able to avoid receiving “actual notice” by simply refusing to sign for a certified mailing, as Respondent alleged Petitioner did in this case.

The court viewed this as an attempt to create a loophole to evade responsibility. Allowing someone to claim ignorance by simply avoiding a signature would undermine the entire legal notification process. The lesson for homeowners is that actively avoiding mail is interpreted by the courts not as ignorance, but as a deliberate attempt to evade responsibility.

3. First-Class Mail Is More Powerful Than You Think

A critical fact in the case was that the HOA didn’t rely solely on trackable certified mail; it also sent the notices via standard USPS first-class mail. This proved to be a savvy “belt and suspenders” legal strategy. By using both methods, the HOA created a redundant and legally robust notification system that was almost impossible to defeat. The judge noted the legal presumption about this standard mail:

…it is presumed that the first class mailing of the same letter was delivered to Petitioner at his address of record.

This concept of “presumed delivery” is a powerful tool in legal proceedings. In many contexts, proof that a letter was properly addressed and sent via standard mail is sufficient to assume it was delivered, unless there is compelling evidence to the contrary. This case demonstrates that even a standard envelope in your mailbox should be treated with the utmost seriousness.

4. In a Dispute, Credibility Is Everything

The case wasn’t decided on technicalities alone; a subjective, human element played a pivotal role. Because the homeowner had filed an official temporary change of address with the USPS, the certified letter was forwarded to his location in Texas. He claimed that the USPS never even left a notice for him to pick it up. The judge’s assessment of this claim was devastating to his case.

Petitioner’s assertion that the USPS failed to notify him of the certified letter at any time between December 24, 2016, and January 12, 2017, was not credible.

In the end, the outcome hinged on the judge’s assessment of believability. With no hard evidence to back up his claim, the homeowner’s story was found to be unconvincing, which fatally undermined his entire argument. The lesson is clear: when a dispute comes down to your word against theirs, your credibility can be your most valuable asset—or your most fatal liability.

5. The Burden of Proof Is on You, the Accuser

A fundamental legal concept that worked against the homeowner was the “burden of proof.” Because Mr. Brown filed the complaint, the responsibility was on him to prove that the HOA had violated the law, not the other way around. The judge stated this rule directly:

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1803(B).

“Preponderance of the evidence” is defined as “[t]he 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.” In other words, Mr. Brown had to prove that his version of events was more likely true than not true. As the petitioner, he failed to provide enough convincing evidence to support his accusation, and his case collapsed.

Conclusion: A $7,500 Lesson

This case is a stark reminder that legal communication is a serious process. Ignoring notices, dodging mail, and hoping problems will disappear is a strategy that carries severe financial and personal consequences. For Mr. Brown, the final outcome was an indefinite suspension from the country club, a $2,500 fine, and an order to pay $5,000 for the expenses the HOA incurred.

The next time a formal notice arrives in your mailbox, will you see it as just a piece of paper, or as a legal process you can’t afford to ignore?

Case Participants

Petitioner Side

  • William Brown (petitioner)
    Appeared on his own behalf

Respondent Side

  • Dax R. Watson (HOA attorney)
    Terravita Country Club, Inc.
  • Thomas Forbes (General Manager)
    Terravita Country Club, Inc.

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Richard Long vs. Pebble Creek Resort Community

Posted on by

Case Summary

Case ID 17F-H1717037-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-09-06
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Richard Long Counsel —
Respondent Pebble Creek Resort Community Counsel —

Alleged Violations

A.R.S. § 41-2198.01; CC&Rs § 1(Hh), 2(P)(i); ALC Guideline SS(4)(a)

Outcome Summary

The ALJ denied the petition, concluding that the homeowner failed to meet the burden of proof demonstrating the HOA violated community documents by refusing the requested block wall. The wall was prohibited by CC&Rs and ALC Guidelines because it was planned for just inside the property line and excluded the adjacent owner from use, potentially leading to prohibited parallel walls.

Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated the CC&Rs and ALC Guidelines.

Key Issues & Findings

Refusal to approve construction of a 10’ long, 6’ high block wall for privacy

Petitioner sought approval for a 10’ long, 6’ high block wall for privacy, built a foot or so inside his property line, designed to prevent adjacent neighbors (the Rohlmans) from using it. Respondent denied the wall based on community documents restricting such constructions to avoid parallel walls and requiring party walls to be on or immediately adjacent to the property line, granting contiguous owners the right to use them.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • CC&R § 1(Hh)
  • CC&R § 2(P)(i)
  • ALC Guideline SS(4)(a)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA, Block Wall, Privacy Wall, CC&Rs, ALC Guidelines, Party Wall
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R § 1(Hh)
  • CC&R § 2(P)(i)
  • ALC Guideline SS(4)(a)

Video Overview

Audio Overview

Decision Documents

17F-H1717037-REL Decision – 586501.pdf

Uploaded 2026-04-24T11:05:32 (117.9 KB)

17F-H1717037-REL Decision – 588547.pdf

Uploaded 2026-04-24T11:05:36 (1013.5 KB)

17F-H1717037-REL Decision – 586501.pdf

Uploaded 2026-01-23T17:20:42 (117.9 KB)

17F-H1717037-REL Decision – 588547.pdf

Uploaded 2026-01-23T17:20:45 (1013.5 KB)

Briefing: Case No. 17F-H1717037-REL, Long v. Pebble Creek Resort Community

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision concerning a dispute between homeowner Richard Long (“Petitioner”) and the Pebble Creek Resort Community homeowners’ association (“Respondent”). The core of the dispute was the Petitioner’s request to build a 10-foot long, 6-foot high block privacy wall approximately one foot inside his property line, which the Respondent’s Architectural Landscape Committee (ALC) denied.

The Administrative Law Judge (ALJ) ultimately denied the petition, a decision that was subsequently adopted as a Final Order by the Arizona Department of Real Estate. The central finding was that the Respondent’s governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and ALC Guidelines—unequivocally prohibit the proposed wall. The ALJ concluded that a wall built so close to a property line is defined as a “Party Wall,” which must be constructed “on or immediately adjacent to” the boundary and be usable by both property owners. The Petitioner’s proposal violated these foundational rules by being set back from the property line with the explicit intent of preventing neighbor access and use.

The Respondent had offered a conditional variance for a wall to be built directly on the property line, but this required a mutual “Party Wall/Fence Agreement” with the adjacent neighbor, who refused to sign, citing concerns over property value and the legal complexity of a perpetual easement. The final ruling affirmed the Respondent’s authority to enforce its governing documents as written.

Case Overview

The matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed by the Petitioner with the Arizona Department of Real Estate. The Petitioner alleged that the Respondent HOA had violated its own governing documents by refusing to approve his proposed wall.

Case Detail

Information

Case Name

Richard Long, Petitioner, v. Pebble Creek Resort Community, Respondent

Case Number

No. 17F-H1717037-REL / HO 17-17/037

Office of Administrative Hearings (Phoenix, Arizona)

Petitioner

Richard Long (Appeared on his own behalf)

Respondent

Pebble Creek Resort Community (Represented by Jack Sarsam, SVP for Robson Communities)

Administrative Law Judge

Diane Mihalsky

Real Estate Commissioner

Judy Lowe

Hearing Date

August 30, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 14, 2017

Core Dispute and Party Positions

Petitioner’s Proposal and Argument (Richard Long)

• Project: A 10-foot long, 6-foot high block wall intended to provide privacy between his patio and the patio of his adjacent neighbors, the Rohlmans.

• Proposed Location: “A foot or so inside his side of the property line.”

• Stated Intent: To construct a wall to which his neighbors could not attach or otherwise use. The Petitioner testified that if the Rohlmans later wanted their own wall (e.g., for a pool or pet), they could build a separate, parallel wall on their property.

• Rejection of Alternatives: The Petitioner acknowledged that the ALC would approve a “privacy panel wall” made of alumawood or lattice, but he rejected this option, deeming it “unsightly and flimsy.”

• Core Claim: The Petitioner argued that the Respondent’s CC&Rs and ALC Guidelines did not explicitly prohibit the construction of his proposed block wall at its intended location inside his property line.

Respondent’s Position and Actions (Pebble Creek HOA)

• Initial Action: The ALC denied the Petitioner’s request.

• Rationale for Denial: The Respondent explained that walls near lot lines can become problematic, particularly if they result in “two parallel walls.” This situation can create a narrow, inaccessible space between the walls that is difficult to maintain and “becomes filled with refuse, leaves, insects, nests and rodents.”

• Conditional Variance: On May 1, 2017, the Respondent offered to approve a variance with several key conditions:

1. The wall must be constructed directly on the property line.

2. Both the Petitioner and the Rohlmans must sign a written “Party Wall/Fence Agreement” (Form ALC 48).

3. This agreement must grant current and future owners permission to “extend/complete the wall” and must be disclosed upon the sale of either home.

4. The signed agreement would be kept in the ALC files for both properties.

Neighbor’s Position (The Rohlmans)

• The Rohlmans declined to sign the Party Wall/Fence Agreement proposed by the Respondent.

• In an email submitted as evidence, they outlined their reasons for refusal:

◦ Property Value: They believed a wall on the property line would negatively affect the “current and future value” of both properties.

◦ Legal Complexity: The agreement would require granting a perpetual easement, which they identified as a legal document entailing legal expenses.

◦ Disclosure upon Sale: The easement would have to be disclosed to future buyers, which they argued “lowers the value of the property.”

◦ Future Construction: A wall on the property line could be extended by either party or future owners “without the agreement of the other party.”

◦ They concluded that “All of these requirements are onerous.”

Analysis of Governing Documents

The ALJ’s decision rested on a direct interpretation of four key sections of the community’s CC&Rs and ALC Guidelines.

• CC&R § 1(Hh) – Definition of “Party Walls”

◦ This section defines a party wall as: “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.”

◦ The ALJ found that the Petitioner’s proposal for a wall “a foot or so inside” the property line did not meet this definition.

• CC&R § 2(P)(i) – Use of Party Walls

◦ This rule states: “Each Owner shall have the right to use the Party Wall, provided that such use does not interfere with the other Owner’s use and enjoyment thereof.”

◦ This directly contradicted the Petitioner’s goal of building a wall that his neighbors would be prohibited from using.

• ALC Guideline SS(4)(a) – Parallel Walls

◦ This guideline explicitly states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.”

◦ The Petitioner’s own testimony acknowledged the possibility of his neighbor building a parallel wall in the future, a scenario the guidelines are designed to prevent.

• ALC Guideline JJ – “Privacy Panel Wall”

◦ This section details the pre-approved alternative for privacy screening. Such a wall must be:

▪ Free-standing alumawood.

▪ Six feet in height and no more than sixteen feet in length.

▪ Located “at least three (3) feet from the property line.”

◦ This demonstrates a clear distinction in the rules between a shared “Party Wall” near the boundary and a private “Privacy Panel” set significantly back from it.

Administrative Law Judge’s Decision and Rationale

The ALJ, Diane Mihalsky, concluded that the Petitioner failed to meet his burden of proof to establish that the Respondent had violated its governing documents.

• Key Findings of Law:

1. A block wall built “a foot inside the property line” does not conform to CC&R § 1(Hh), which requires a party wall to be “on or immediately adjacent to” the boundary.

2. The Petitioner’s intent to deny his neighbor the use of the wall violates CC&R § 2(P)(i), which grants both owners rights to use a party wall.

3. The Petitioner’s proposal creates the potential for prohibited parallel walls, violating ALC Guideline SS(4)(a).

• Conclusion: The ALJ stated that the community’s documents “unequivocally prohibit Respondent from building a 6’ high, 10’ long block wall a foot from his property line that the Rohlmans are not permitted to use.”

• Recommended Order: On September 6, 2017, the ALJ issued a recommended order that the Petitioner’s petition be denied.

Final Order and Subsequent Actions

• Adoption of Decision: On September 14, 2017, Judy Lowe, Commissioner of the Arizona Department of Real Estate, issued a Final Order adopting the ALJ’s decision in its entirety.

• Effect of Order: The denial of the petition became final, binding, and effective immediately.

• Conditions for Rehearing: The Final Order stipulated that a rehearing could be granted pursuant to A.R.S. § 32-2199.04, but only for one of the following reasons:

1. Irregularity in proceedings or abuse of discretion by the ALJ.

2. Misconduct by the Department, ALJ, or prevailing party.

3. Accident or surprise that could not have been prevented.

4. Newly discovered material evidence.

5. Excessive or insufficient penalties.

6. Error in the admission or rejection of evidence.

7. The decision is arbitrary, capricious, or an abuse of discretion.

8. The findings of fact are not supported by the evidence or are contrary to law.

• Judicial Review: The order is subject to judicial review through the filing of a complaint pursuant to state law.

Study Guide: Long v. Pebble Creek Resort Community (Case No. 17F-H1717037-REL)

This study guide provides a review of the administrative hearing decision concerning a dispute between homeowner Richard Long and the Pebble Creek Resort Community homeowners’ association. It covers the facts of the case, the arguments presented, the relevant community rules, and the final legal outcome.

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Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, based on the information provided in the case documents.

1. What was the specific structure that the Petitioner, Richard Long, proposed to build, and what was its intended purpose?

2. On what grounds did the Respondent, Pebble Creek Resort Community, justify its restrictions against the type of wall the Petitioner proposed?

3. What conditional variance did the Respondent offer to the Petitioner on May 1, 2017?

4. What were the primary concerns expressed by the Petitioner’s neighbors, the Rohlmans, which led them to decline the proposed wall agreement?

5. According to ALC Guideline JJ, what alternative structure could the Petitioner have built for privacy, and what were its key requirements?

6. How do the CC&Rs define a “Party Wall,” and what right does CC&R § 2(P)(i) grant to contiguous property owners regarding such a wall?

7. What rule from the ALC Guidelines prohibits the construction of two parallel walls side-by-side, and why is this rule in place?

8. What is the legal standard of “preponderance of the evidence” as defined in the hearing decision?

9. Who held the burden of proof to establish that the homeowners’ association violated its governing documents?

10. What was the final, binding outcome of the case after the Administrative Law Judge’s decision was reviewed?

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Answer Key

1. The Petitioner proposed to build a 10-foot long, 6-foot high block wall for privacy between his patio and his neighbor’s patio. The wall was to be located a foot or so inside his side of the property line, so his neighbors could not attach to it.

2. The Respondent explained that walls built near, but not on, the property line can lead to problems. This can result in two parallel walls being built, creating an unmaintainable space between them that collects refuse, leaves, insects, nests, and rodents.

3. The Respondent approved a variance on the condition that the wall be built on the property line. Both the Petitioner and his neighbors (the Rohlmans) had to agree in writing that current or future owners could extend the wall, with this agreement being disclosed upon sale of either house.

4. The Rohlmans declined because they believed a wall on the property line would negatively affect their property’s value. They were also concerned about the legal expense and perpetual nature of an easement, and the possibility that future owners could lengthen the wall without consent.

5. ALC Guideline JJ permits a “privacy panel wall,” which is a free-standing alumawood wall. This wall must be 6 feet high, no longer than 16 feet, and located at least 3 feet from the property line. The Petitioner rejected this option, feeling it was “unsightly and flimsy.”

6. CC&R § 1(Hh) defines a “Party Wall” as a wall constructed on or immediately adjacent to the common boundary of lots. CC&R § 2(P)(i) states that each owner of a contiguous property has the right to use the Party Wall, provided it does not interfere with the other owner’s use.

7. ALC Guideline SS(4)(a) states that an existing party wall along a joint property line “precludes any adjacent parallel party wall.” This rule is in place to prevent the negative situation described by the Respondent where a difficult-to-maintain space is created between two walls.

8. A “preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is also described as “the greater weight of the evidence” that is sufficient to incline a fair mind to one side of an issue over the other.

9. The Petitioner, Richard Long, bore the burden of proof. He had to establish by a preponderance of the evidence that the Respondent violated the CC&Rs and ALC Guidelines.

10. The Administrative Law Judge (ALJ) denied the Petitioner’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate, becoming a Final Order. The Order is binding on the parties unless a rehearing is granted.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a longer, essay-style response. Use the case documents to formulate a comprehensive answer supported by specific facts and citations to the community’s governing documents.

1. Analyze the conflict between the Petitioner’s desire for a specific type of privacy structure and the Respondent’s interpretation of the community’s CC&Rs and ALC Guidelines. How did the governing documents prioritize community standards and potential future problems over an individual homeowner’s preference?

2. Discuss the role and reasoning of the Petitioner’s neighbors, the Rohlmans. Evaluate their concerns regarding property value, easements, and future modifications as presented in their email, and explain how their refusal to sign the agreement was a critical factor in the dispute.

3. Explain the legal reasoning used by Administrative Law Judge Diane Mihalsky to reach her decision. Detail which specific sections of the CC&Rs and ALC Guidelines were most influential and how she applied them to unequivocally deny the Petitioner’s request.

4. Compare and contrast the two types of structures discussed for ensuring privacy: the block wall proposed by the Petitioner and the “privacy panel wall” permitted by ALC Guideline JJ. What are the key differences in their material, specifications, placement, and the implications of those differences within the community’s rules?

5. Trace the procedural path of this dispute, from the initial petition to the Final Order. Describe the distinct roles and authority of the Arizona Department of Real Estate, the Architectural Landscape Committee (ALC), the Office of Administrative Hearings, the Administrative Law Judge, and the Commissioner.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes decisions on disputes. In this case, the ALJ was Diane Mihalsky.

Architectural Landscape Committee (ALC)

The committee within the homeowners’ association responsible for reviewing and approving or denying proposed changes to properties, such as walls and fences, based on the community’s guidelines.

Burden of Proof

The obligation to prove one’s assertion. In this case, the Petitioner bore the burden of proof to establish that the Respondent violated the community documents.

Covenants, Conditions and Restrictions. These are the governing legal documents that set out the guidelines for a planned community or homeowners’ association.

The Department

The Arizona Department of Real Estate, which is authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.

Homeowners’ Association (HOA)

The organization that creates and enforces rules for the properties within its jurisdiction. In this case, the Pebble Creek Resort Community homeowners’ association was the Respondent.

Party Wall

As defined in CC&R § 1(Hh), “a wall constructed on or immediately adjacent to the common boundary of Lots, Parcels, Common Areas or other areas in PebbleCreek Golf Resort.” CC&R § 2(P)(i) grants each owner the right to use the Party Wall.

Petitioner

The party who files a petition initiating a legal action. In this case, the homeowner Richard Long.

Preponderance of the Evidence

The standard of proof in this civil case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and “[t]he greater weight of the evidence.”

Respondent

The party against whom a petition is filed. In this case, the Pebble Creek Resort Community homeowners’ association.

Why Your HOA Can Control a Wall Built Entirely on Your Property

Introduction: The Privacy Paradox

Imagine you want a bit more privacy from your next-door neighbor. The solution seems simple: build a wall. To avoid any disputes, you decide to build it entirely on your land, a good foot inside your property line. It’s your property, your wall, your right. But what if your Homeowners’ Association (HOA) tells you that you can’t? This is not a hypothetical scenario; it’s precisely what happened to homeowner Richard Long when he tried to build a 10’ long, 6’ high block wall.

Mr. Long proposed building the wall just one foot inside his property line, believing this would make it a private structure, free from the shared-property rules that often complicate neighborly relations. The HOA denied his request, sparking a legal dispute. The outcome of this case provides surprising and counter-intuitive lessons that every homeowner in a planned community should understand about property rights, community rules, and the hidden logic that governs them.

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1. The Hidden Logic: Preventing the “Rodent Run”

At first glance, the HOA’s rule might seem like arbitrary overreach. Why should they care if a wall is on the property line or one foot away from it? The answer reveals a practical, long-term logic designed to prevent a specific, unpleasant problem: two parallel walls built side-by-side.

The HOA’s governing documents were written to avoid a scenario where a small, unmaintainable gap is created between two separate walls on adjacent properties. If Mr. Long built his wall a foot inside his line, and his neighbor later decided to do the same, a narrow dead space would be created between the homes. In its official written answer, the HOA vividly described the issue this creates:

This is not a good situation in that there often isn’t room between the walls to properly maintain either wall, and the area in between the two walls becomes filled with refuse, leaves, insects, nests and rodents.

This reveals a core principle of planned community management: rules are often designed not to restrict current owners, but to mitigate future risks and liabilities for the entire community. This preventative governance aims to protect the community from future blight, sanitation issues, and pest infestations.

——————————————————————————–

2. The “Immediately Adjacent” Rule: Your Property Isn’t an Island

The homeowner’s central argument was that by building the wall a foot inside his property, it was his private wall, not a shared “party wall” subject to joint rules. It was a clever attempt to circumvent the regulations, but it failed because of the precise wording in the community’s Covenants, Conditions, and Restrictions (CC&Rs).

Here, the dispute hinged on two seemingly innocuous words. The community’s CC&Rs define a “Party Wall” as a wall constructed “on or immediately adjacent to the common boundary.” The Administrative Law Judge interpreted a wall built only a foot away as falling under the definition of “immediately adjacent.” This single phrase effectively negated the homeowner’s entire strategy.

The judge’s determination that the wall qualified as “immediately adjacent” was critical. By legally defining it as a Party Wall, another rule from the CC&Rs automatically kicked in: the adjoining neighbor’s explicit right to use it. This completely undermined the homeowner’s central goal of creating a purely private structure.

As if that weren’t definitive enough, another, even more explicit rule served as the final nail in the coffin. ALC Guideline SS(4)(a) states: “An existing party wall along a joint property line precludes any adjacent parallel party wall, i.e. Two walls cannot be built side by side.” This rule directly forbids the exact “rodent run” scenario, showing that the governing documents had multiple, overlapping prohibitions against his plan.

——————————————————————————–

3. The Neighbor’s Veto: It’s a Three-Party Problem

In an attempt to find a middle ground, the HOA offered a potential compromise. They would approve the wall, but only if it were built directly on the property line and if both Mr. Long and his neighbors, the Rohlmans, signed a formal “Party Wall/Fence Agreement.” This solution, however, revealed another layer of complexity. The neighbors refused to sign.

The Rohlmans explained their reasoning in an email, highlighting concerns that went beyond simple aesthetics. They worried about the financial and legal implications of a shared wall on the property line.

[We] declined to have a wall built on the property line between our homes because it affects the current and future value of our property – and yours. Furthermore, each of us would have to grant the other an easement in perpetuity, which is a legal document… Upon the sale of our home, we would have to inform the purchaser of the easement, which lowers the value of the property.

This demonstrates a common blind spot for homeowners: disputes are rarely bilateral. The rights and financial interests of adjacent property owners create a complex, multi-party dynamic. More often than not, an HOA dispute is a three-party negotiation, and a neighbor’s consent—or lack thereof—can be the deciding factor.

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Conclusion: The Rules You Don’t Know Can Hurt You

The final outcome was decisive. The Administrative Law Judge upheld the HOA’s decision, and the homeowner’s petition was denied. The judge concluded that the community’s governing documents “unequivocally prohibit” the proposed wall. However, this was not a total denial of privacy. Mr. Long did have an approved option: a free-standing “alumawood” privacy panel, provided it was located three feet from the property line. He rejected this alternative because he felt it was “unsightly and flimsy.”

This case serves as a powerful reminder that an HOA’s governing documents are not mere suggestions; they are legally binding contracts. The conflict was ultimately not between a homeowner’s right to privacy and the HOA, but between the homeowner’s specific aesthetic preference and the community’s established architectural standards. What you can do on your own land is deeply intertwined with the collective rules you agreed to when you purchased your home.

Before your next home improvement project, does your plan align not just with your vision, but also with the shared vision encoded in your community’s rules?

Case Participants

Petitioner Side

  • Richard Long (petitioner)
    Appeared on his own behalf
  • Petitioner's wife (interested party)
    Required, along with Petitioner, to agree in writing to the wall conditions for variance approval (Unit 39 Lot 12)

Respondent Side

  • Jack Sarsam (executive/witness)
    Robson Communities
    Senior Vice President for Robson Communities, overseeing Respondent's operations; testified for Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    Administrative Law Judge who issued the decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Commissioner who adopted the ALJ decision in the Final Order
  • Dan Gardner (HOA Coordinator)
    Contact for rehearing requests; listed as HOA Coordinator

Other Participants

  • The Rohlmans (neighbor/interested party)
    Adjacent neighbors (Unit 39 lot 11) whose refusal to sign the party wall agreement was central to the dispute

Jerry Wheeler vs. Beaver Dam Estates Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1717036-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-09-06
Administrative Law Judge Suzanne Marwil
Outcome The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Filing Fees Refunded $500.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jerry Wheeler Counsel —
Respondent Beaver Dam Estates Homeowners Association Counsel —

Alleged Violations

A.R.S. § 33-1804(B)

Outcome Summary

The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.

Key Issues & Findings

Failure to hold required annual meeting

Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.

Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1804(B)
  • A.R.S. § 32-2199.02(A)
  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.05

Analytics Highlights

Topics: HOA annual meeting violation, statutory requirement, default judgment
Additional Citations:

  • A.R.S. § 33-1804
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 32-2199.01
  • A.R.S. § 32-2199.02
  • A.R.S. § 32-2199.05
  • A.A.C. R2-19-119(B)
  • A.A.C. R2-19-119(A)

Video Overview

Audio Overview

Decision Documents

18F-H1717036-REL Decision – 586602.pdf

Uploaded 2026-04-24T11:06:21 (65.3 KB)

18F-H1717036-REL Decision – 588549.pdf

Uploaded 2026-04-24T11:06:24 (592.6 KB)

18F-H1717036-REL Decision – 586602.pdf

Uploaded 2026-01-23T17:21:12 (65.3 KB)

18F-H1717036-REL Decision – 588549.pdf

Uploaded 2026-01-23T17:21:16 (592.6 KB)

Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association

Executive Summary

This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.

The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.

The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.

Case Overview

The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.

Case Detail

Information

Petitioner

Jerry Wheeler

Respondent

Beaver Dam Estates Homeowners Association

Case Number (OAH)

18F-H1717036-REL

Case Number (Dept. of Real Estate)

HO 17-17/036

Petition Filed

June 8, 2017

Hearing Date

September 5, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 13, 2017

Presiding Judge

Suzanne Marwil, Administrative Law Judge (ALJ)

Adopting Authority

Judy Lowe, Commissioner, Arizona Department of Real Estate

Petitioner’s Allegations and Evidence

The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.

• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”

• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.

• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.

Respondent’s Actions and Procedural Failures

The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.

• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.

• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.

• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.

• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.

• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.

Legal Framework and Conclusions of Law

The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.

• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:

• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”

• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”

Final Order and Penalties

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.

IT IS ORDERED that:

1. The petitioner’s petition is granted.

2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.

3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.

4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.

This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.

Study Guide for Wheeler v. Beaver Dam Estates HOA

Short Answer Quiz

Instructions: Answer the following ten questions based on the provided legal documents. Each answer should be approximately 2-3 sentences.

1. Who were the primary parties in the case Wheeler v. Beaver Dam Estates Homeowners Association, and what were their roles?

2. What was the central allegation made by the Petitioner against the Respondent?

3. According to the Findings of Fact, how long had the Petitioner lived in the community, and why is this duration significant?

4. What specific Arizona Revised Statute (A.R.S.) did the Respondent violate, and what does this statute require?

5. What event involving the Respondent’s president, Randy Hawk, complicated the case proceedings?

6. What was the outcome of the hearing held on September 5, 2017, regarding the Respondent’s attendance?

7. What standard of proof was required in this matter, and which party had the burden of proof?

8. Describe the key components of the Order issued by the Administrative Law Judge.

9. What two monetary penalties were imposed on the Beaver Dam Estates Homeowners Association?

10. According to the Final Order, what steps could an aggrieved party take after the decision was issued?

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Answer Key

1. The primary parties were Jerry Wheeler, the Petitioner, and the Beaver Dam Estates Homeowners Association, the Respondent. As the Petitioner, Mr. Wheeler initiated the legal action by filing a petition, while the Homeowners Association was the entity required to respond to the allegations.

2. The central allegation was that the Respondent had violated state law by failing to hold a meeting of the members’ association for several years. The Petitioner specifically sought to have the association convene a meeting to review financial statements.

3. The Petitioner, Jerry Wheeler, testified that he had moved into the community on April 1, 2014. This duration is significant because he stated that no meeting of the association had been held during his entire tenure, providing a multi-year timeframe for the alleged violation.

4. The Respondent violated A.R.S. § 33-1804(B). This statute mandates that, notwithstanding any provisions in community documents, a meeting of the members’ association must be held at least once each year within the state of Arizona.

5. After responding to the petition and scheduling a future meeting, the Respondent’s president, Randy Hawk, passed away. The Petitioner informed the Tribunal of this event, which created uncertainty about who could serve as the Respondent’s representative in the matter.

6. The Respondent, Beaver Dam Estates Homeowners Association, failed to appear for the hearing on September 5, 2017. After a 20-minute grace period, the Administrative Law Judge proceeded with the hearing in the Respondent’s absence.

7. The standard of proof was a “preponderance of the evidence,” as stated in A.A.C. R2-19-119(A). Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jerry Wheeler, had the burden of proving his case.

8. The Order granted the Petitioner’s petition and mandated that the Respondent hold a meeting on the currently scheduled date of December 28, 2017. It also imposed financial penalties on the Respondent and affirmed that the order was binding on the parties unless a rehearing was granted.

9. The Respondent was ordered to pay the Petitioner’s filing fee required by section 32-2199.01. Additionally, the Respondent was ordered to pay a civil penalty of $250.00 to the planned community hearing office fund.

10. A person aggrieved by the decision could apply for a rehearing by filing a petition with the Commissioner within thirty (30) days. The Final Order is also considered a final administrative action, which a party may appeal by filing a complaint for judicial review.

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Essay Questions

Instructions: The following questions are designed to test a deeper, more comprehensive understanding of the case. Formulate a detailed essay-style response for each.

1. Trace the procedural history of case No. 18F-H1717036-REL from the initial petition filing to the issuance of the Final Order. Discuss the key dates, actions taken by the parties and the Tribunal, and the legal significance of each step.

2. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Explain how the “Findings of Fact” supported the “Conclusions of Law,” with a specific focus on the violation of A.R.S. § 33-1804(B) and the application of the “preponderance of the evidence” standard.

3. Discuss the role and authority of the Office of Administrative Hearings and the Department of Real Estate in this dispute. How do the statutes cited (e.g., A.R.S. § 32-2199 et seq.) empower these bodies to adjudicate disputes and enforce compliance among homeowners associations?

4. Evaluate the impact of the Respondent’s failure to appear at the September 5, 2017 hearing. How did this absence affect the proceedings and the evidence presented, and in what way did it likely influence the final outcome?

5. Examine the remedies and enforcement mechanisms outlined in the Final Order. Discuss the specific purpose of ordering a meeting, reimbursing the filing fee, and imposing a civil penalty, and explain the legal process for appealing the decision.

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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, Suzanne Marwil served as the ALJ.

A.R.S. (Arizona Revised Statutes)

The codified collection of laws for the state of Arizona. The case frequently cites statutes within Title 32 and Title 33, such as A.R.S. § 33-1804(B), which governs HOA meetings.

A.A.C. (Arizona Administrative Code)

The official compilation of rules and regulations of Arizona state agencies. A.A.C. R2-19-119 established the burden and standard of proof for the hearing.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this matter, the burden of proof was on the Petitioner.

Civil Penalty

A monetary fine imposed by a government agency for a violation of a law or regulation. The Respondent was ordered to pay a $250.00 civil penalty.

Conclusions of Law

The section of a legal decision that applies the relevant laws and legal principles to the established facts of the case to reach a judgment.

Final Administrative Action

A final decision by an administrative agency that is legally binding and can be appealed to a court through a process of judicial review.

Findings of Fact

The section of a legal decision that details the factual circumstances of the case as determined by the judge based on the evidence presented.

A formal directive from a judge or administrative body that requires a party to perform a specific act or refrain from doing so. The final decision in this case included an Order for the Respondent to hold a meeting and pay penalties.

Petitioner

The party who initiates a legal proceeding by filing a petition. In this case, the Petitioner was Jerry Wheeler.

Preponderance of the Evidence

The standard of proof in most civil cases, which requires that the evidence presented by one side is more convincing and likely to be true than the evidence of the opposing side.

Rehearing

A request to have a case heard again by the same administrative body or court, typically based on new evidence or an error in the original proceeding. A party had 30 days to petition for a rehearing.

Respondent

The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Beaver Dam Estates Homeowners Association.

Tribunal

A general term for a body, including a court or administrative hearing office, that has the authority to judge or determine claims and disputes.

4 Key Lessons from One Homeowner’s Winning Fight Against His HOA

Introduction: When Your HOA Becomes Dysfunctional

For many homeowners, a Homeowners Association (HOA) is a background presence, collecting dues and ensuring community standards. But what happens when the HOA itself fails in its duties? When legally required meetings stop, financial transparency disappears, and the leadership becomes unresponsive, residents can feel powerless. It’s a common frustration that leaves homeowners wondering what recourse they have when the very organization meant to maintain order violates its own governing laws.

This was the exact situation faced by Jerry Wheeler, a resident of Beaver Dam Estates in Arizona. After years of his HOA failing to hold its legally required annual meeting, he decided he had enough. Instead of letting his frustration simmer, he took formal action, setting in motion a legal process that offers powerful lessons for any homeowner living in a planned community. His story is a clear example of how one determined individual can hold an association accountable.

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1. One Determined Homeowner Can Hold an Entire HOA Accountable

It can feel daunting to challenge an organization, but Jerry Wheeler’s case proves that a single person can be the catalyst for change. The core of his dispute extended beyond procedure into a fundamental issue of financial transparency. On June 8, 2017, Wheeler filed a petition because since moving in on April 1, 2014, no annual meeting had been held. His stated goal was clear: he wanted the HOA to convene a meeting to “review Respondent’s financial statements with the homeowners.”

Initially, the HOA president, Randy Hawk, responded to the petition by agreeing to hold a meeting. However, the execution faltered. A meeting scheduled for July 18, 2017, failed when only about ten people attended. Hawk then rescheduled for December 28, 2017. While Wheeler initiated the petition alone, he strengthened his case by presenting numerous written statements from other homeowners confirming no annual meetings had been held for several years. This demonstrates that one person’s courageous action, aimed at securing accountability and supported by the community, can successfully trigger the legal mechanisms designed to protect homeowners’ rights.

2. Annual Meetings Aren’t Just a Suggestion—They’re the Law

The core of Jerry Wheeler’s complaint wasn’t based on a simple grievance; it was rooted in a specific violation of Arizona state law. The Administrative Law Judge’s decision found that the Beaver Dam Estates HOA was in direct violation of a statute requiring annual meetings. This law is not a guideline or a best practice—it is a legal mandate.

For any homeowner in Arizona, the relevant section of the law is crystal clear:

A.R.S. § 33-1804(B)

Notwithstanding any provision in the community documents, all meetings of the members’ association and the board shall be held in this state. A meeting of the members’ association shall be held at least once each year…

This statute is a cornerstone of transparency and accountability for planned communities. It ensures that residents have a regular, guaranteed opportunity to hear from the board, review financials, elect new leadership, and have their voices heard. Understanding that this is a legal requirement—not just a courtesy—is critical knowledge for any homeowner.

3. Ignoring the Process Has Financial Consequences

The Beaver Dam Estates HOA’s strategy of inaction ultimately backfired, resulting in financial penalties. The association’s failure to appear at its own hearing on September 5, 2017, meant that Wheeler’s evidence was uncontested, leading directly to a default judgment and the resulting financial penalties. The judge’s final order wasn’t just a request to do better; it was a binding decision with specific consequences.

Because the judge granted the petitioner’s petition, the HOA was ordered to take three specific actions:

• Hold the legally required meeting as scheduled on December 28, 2017.

• Pay the Petitioner (Jerry Wheeler) back for his filing fee.

• Pay a civil penalty of $250.00 to the planned community hearing office fund.

This outcome makes it clear that avoiding legal and administrative responsibilities is not a viable strategy. The process is designed to proceed with or without the respondent’s participation, and ignoring it leads directly to mandated actions and financial penalties.

4. The System Can Work, Even Under Strange Circumstances

The proceedings in this case were complicated by unusual and unfortunate events, yet the legal framework proved resilient. After attempting to schedule the required meetings, the HOA’s president, Randy Hawk, passed away. The tribunal ordered the association to name a new representative, but it failed to do so. Compounding the issue, no one from the HOA showed up for the scheduled hearing.

Despite these significant obstacles—the death of the board’s president and the association’s complete failure to participate—the process did not grind to a halt. The Administrative Law Judge was able to conduct the hearing, review the uncontested evidence presented by Jerry Wheeler, make official Findings of Fact, and issue a final, binding order. This remarkable persistence shows that the administrative system is robust and designed to deliver a resolution, ensuring that a petitioner’s rights are upheld even when a respondent organization is in disarray.

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Conclusion: Know Your Rights

The case of Jerry Wheeler vs. Beaver Dam Estates is a powerful reminder that community living is governed by rules that apply to everyone—including the association itself. An HOA cannot simply cease to function or ignore its legal obligations without consequence. The systems in place, from state statutes to administrative hearings, are designed to provide a path for homeowners to seek and achieve recourse.

This case serves as an empowering example of how knowledge and determination can lead to accountability. It underscores the importance of understanding the specific laws that govern your community association. This case was in Arizona, but it raises a universal question: Do you know the specific laws that govern your own HOA, and is your board in compliance?

Case Participants

Petitioner Side

  • Jerry Wheeler (petitioner)

Respondent Side

  • Randy Hawk (president)
    Beaver Dam Estates Homeowners Association

Neutral Parties

  • Suzanne Marwil (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Dan Gardner (HOA coordinator)

Paul Herbert vs. Blackstone at Vistancia Community Association

Posted on by

Case Summary

Case ID 18F-H1817002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-01-03
Administrative Law Judge Diane Mihalsky
Outcome neutral
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian C. Herbert Counsel Jeffrey D. Harris
Respondent Blackstone at Vistancia Community Association Counsel Stewart F. Salwin

Alleged Violations

A.A.C. R2-19-111(3)

Outcome Summary

The case was resolved by settlement between the parties before adjudication, leading to the vacation of the scheduled hearing and remand to the ADRE.

Key Issues & Findings

Resolution by Settlement

The parties reached a settlement, resulting in a motion to vacate the hearing on the merits.

Orders: ORDER VACATING HEARING; matter remanded to the Director of the Arizona Department of Real Estate for further action.

Filing fee: $0.00, Fee refunded: No

Disposition: settlement

Cited:

  • A.A.C. R2-19-111(3)

Analytics Highlights

Topics: Settlement, Vacated Hearing, HOA Dispute
Additional Citations:

  • A.A.C. R2-19-111(3)

Video Overview

Audio Overview

Decision Documents

18F-H1817002-REL Decision – 609956.pdf

Uploaded 2026-04-27T09:30:16 (51.3 KB)

18F-H1817002-REL Decision – 584947.pdf

Uploaded 2026-04-27T09:30:23 (56.6 KB)

18F-H1817002-REL Decision – 609956.pdf

Uploaded 2026-04-24T11:06:51 (51.3 KB)

18F-H1817002-REL Decision – 584947.pdf

Uploaded 2026-04-24T11:06:55 (56.6 KB)

Briefing on Case No. 18F-H1817002-REL-RHG: Herbert v. Blackstone at Vistancia

Executive Summary

This briefing details the resolution of case number 18F-H1817002-REL-RHG, a dispute between Petitioner Brian C. Herbert and Respondent Blackstone at Vistancia Community Association. The central development is that the parties reached a settlement, leading their attorneys to jointly file a motion to vacate the scheduled hearing. On January 3, 2018, Administrative Law Judge Diane Mihalsky of the Arizona Office of Administrative Hearings granted this motion. The hearing scheduled for January 5, 2018, was officially vacated, and the case was remanded to the Director of the Arizona Department of Real Estate for subsequent action.

Case Overview

• Case Number: 18F-H1817002-REL-RHG

• Forum: The Office of Administrative Hearings, Phoenix, Arizona

• Petitioner: Brian C. Herbert

• Respondent: Blackstone at Vistancia Community Association

• Presiding Judge: Diane Mihalsky, Administrative Law Judge

Key Development: Settlement and Hearing Vacation

The primary catalyst for the case’s disposition was a mutual agreement between the parties.

• Settlement Reached: The document explicitly states that the parties “have reached a settlement.”

• Joint Motion: Following the settlement, the attorneys for both the Petitioner and the Respondent filed a joint motion to vacate the hearing on the merits of the case.

• Hearing Canceled: The order formally vacates the “continued hearing that had been scheduled on January 5, 2018, at 8:30 a.m.”

Judicial Orders and Disposition

On January 3, 2018, Judge Diane Mihalsky issued two definitive orders that concluded the proceedings at the Office of Administrative Hearings:

1. Order to Vacate: The first order vacates the hearing scheduled for January 5, 2018. The document states: “IT IS ORDERED vacating the continued hearing that had been scheduled on January 5, 2018, at 8:30 a.m.”

2. Order to Remand: The second order remands, or sends back, the matter to a different state body for final processing. It specifies: “IT IS FURTHER ORDERED remanding this matter under A.A.C. R2-19-111(3) to the Director of the Arizona Department of Real Estate for further action.”

Parties and Legal Representation

The following table details the key individuals and firms involved in the legal matter.

Name/Entity

Legal Counsel

Law Firm

Contact Information

Petitioner

Brian C. Herbert

Jeffrey D. Harris, Esq.

Titus Brueckner & Levine, PLC

[email protected]
8355 East Hartford Drive, Suite 200, Scottsdale, AZ 85255

Respondent

Blackstone at Vistancia Community Association

Stewart F. Salwin, Esq.
Lydia A. Peirce Linsmeier, Esq.

Carpenter, Hazlewood, Delgado & Bolen, PLC

[email protected]
[email protected]
1400 E. Southern Ave., Suite 400, Tempe, AZ 85282

Administrative Details

• Order Date: The order was issued on January 3, 2018.

• Transmission: The document was transmitted on January 3, 2018, by “M.Aguirre” via mail, email, or facsimile.

• Recipients of the Order:

◦ Arizona Department of Real Estate:

▪ Judy Lowe, Commissioner

▪ Additional staff: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]

◦ Legal Counsel: All attorneys listed in the table above.

Study Guide: Case No. 18F-H1817002-REL-RHG

This guide is designed to review the key facts, entities, and procedures detailed in the legal document concerning the case of Brian C. Herbert v. Blackstone at Vistancia Community Association.

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Quiz: Short Answer Questions

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

1. Who were the two primary parties involved in case number 18F-H1817002-REL-RHG?

2. What was the specific legal action taken by the Administrative Law Judge on January 3, 2018?

3. What was the stated reason for vacating the hearing?

4. On what date and at what time was the original hearing scheduled to take place before it was canceled?

5. Identify the Administrative Law Judge who signed the order and the administrative body she represents.

6. Following the order to vacate the hearing, to which government agency was the matter sent for further action?

7. Which attorney and law firm represented the Petitioner in this case?

8. Identify the attorneys and the law firm that represented the Respondent.

9. What is the full title of the legal document, and what is its case number?

10. Besides the legal representatives for the Petitioner and Respondent, to which organization were copies of the order transmitted?

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Answer Key

1. The two primary parties were the Petitioner, Brian C. Herbert, and the Respondent, Blackstone at Vistancia Community Association.

2. The Administrative Law Judge issued an order vacating the continued hearing that had been scheduled. The order also remanded the matter to the Director of the Arizona Department of Real Estate for further action.

3. The hearing was vacated because the attorneys for both the Petitioner and the Respondent filed a motion to vacate, indicating that the two parties had reached a settlement.

4. The canceled hearing had been scheduled to take place on January 5, 2018, at 8:30 a.m.

5. The order was signed by Diane Mihalsky, an Administrative Law Judge. She represents the Office of Administrative Hearings, located at 1400 West Washington, Suite 101, Phoenix, Arizona.

6. The matter was remanded to the Director of the Arizona Department of Real Estate. The order was transmitted to the department’s Commissioner, Judy Lowe, and several other individuals within the department.

7. The Petitioner, Brian C. Herbert, was represented by Jeffrey D. Harris, Esq. of the law firm Titus Brueckner & Levine, PLC.

8. The Respondent, Blackstone at Vistancia Community Association, was represented by Stewart F. Salwin, Esq. and Lydia A. Peirce Linsmeier, Esq. from the law firm Carpenter, Hazlewood, Delgado & Bolen, PLC.

9. The full title of the document is “ORDER VACATING HEARING.” The case number is No. 18F-H1817002-REL-RHG.

10. Copies of the order were transmitted to the Arizona Department of Real Estate. Specifically, they were sent to Commissioner Judy Lowe and six other email addresses associated with the department.

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Essay Questions

Instructions: The following questions are designed to encourage a deeper synthesis of the information in the document. Formulate a comprehensive response to each prompt.

1. Describe the procedural history of this case as presented in the order. Detail the sequence of events that led to the issuance of this order and explain the mandated next step for the case.

2. Analyze the roles and relationships of all named individuals and entities in the document. Discuss the functions of the Petitioner, Respondent, their respective legal counsel, the Administrative Law Judge, the Office of Administrative Hearings, and the Arizona Department of Real Estate within the context of this legal matter.

3. Explain the legal significance of a “settlement” in the context of this case. How did the settlement between Brian C. Herbert and the Blackstone at Vistancia Community Association directly influence the actions taken by the Office of Administrative Hearings?

4. Detail the formal communication process for this legal order. Identify who issued the order, the date of issuance, the methods of transmission, and the complete list of recipients, including their professional titles and affiliations where provided.

5. Based on the order’s text, discuss the legal authority under which the case was remanded. What does the citation of A.A.C. R2-19-111(3) and the subsequent remand to the Department of Real Estate suggest about the jurisdiction and procedural relationship between the Office of Administrative Hearings and the Arizona Department of Real Estate?

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Glossary of Key Terms

Definition

A.A.C.

An abbreviation for the Arizona Administrative Code, a set of state regulations. In this document, it is cited as A.A.C. R2-19-111(3) as the legal basis for remanding the case.

Administrative Law Judge

An official, in this case Diane Mihalsky, who presides over hearings at an administrative agency (the Office of Administrative Hearings) and makes legal rulings.

Attorney

A legal professional representing a client. The document lists Stewart F. Salwin, Lydia A. Peirce Linsmeier, and Jeffrey D. Harris as attorneys for the parties.

An abbreviation for “Esquire,” a courtesy title commonly used for practicing attorneys in the United States.

Hearing

A formal proceeding before a judge or administrative body to resolve a legal dispute. In this case, the hearing scheduled for January 5, 2018, was vacated.

Matter

A legal case or issue being considered by a court or administrative body.

Motion

A formal request made by a party to a judge or administrative body for an order or ruling. Here, the parties filed a “motion to vacate the hearing.”

Office of Administrative Hearings

The state agency in Phoenix, Arizona, responsible for conducting hearings for other state agencies. It is the body that issued this order.

A formal written direction from a judge or administrative body. This document is titled an “ORDER VACATING HEARING.”

Petitioner

The party who initiates a legal action or files a petition seeking a legal remedy. In this case, the Petitioner is Brian C. Herbert.

Remand

To send a case back to a lower court or another body for further action. This matter was remanded to the Director of the Arizona Department of Real Estate.

Respondent

The party against whom a petition is filed; the party who responds to the legal action. In this case, the Respondent is the Blackstone at Vistancia Community Association.

Settlement

An agreement reached between opposing parties in a legal dispute, resolving the issue without a full hearing or trial. The parties in this case reached a settlement, leading to the motion to vacate.

Vacate

To cancel or make void a scheduled legal proceeding. The order explicitly vacates the hearing that was scheduled for January 5, 2018.

What a Single Page of Legalese Reveals About How ConflictsReallyEnd

We’ve all seen it on screen: the dramatic courtroom showdown. A lawyer points an accusatory finger, a witness breaks down on the stand, and a judge slams a gavel to seal a dramatic verdict. It’s compelling television, but it bears little resemblance to how most conflicts in our society actually end. The real story is often much quieter, hidden in plain sight within documents that most of us would dismiss as bureaucratic fine print.

This single page, an “Order Vacating Hearing” filed away in a public record, is more than just paper. This seemingly inert document upends the Hollywood version of justice and reveals three powerful truths about how our society actually functions. It’s a window into the hidden world of negotiation, procedure, and resolution that keeps our civil society from grinding to a halt.

By closely examining this order, we can uncover a story not of courtroom battles, but of quiet compromise and the powerful machinery of resolution.

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1. The Real Drama Happens Off-Screen

The most pivotal moment in this legal dispute wasn’t a climactic courtroom argument; it was an event that happened entirely behind the scenes, just before the curtain was set to rise.

An order signed by Administrative Law Judge Diane Mihalsky shows that a formal hearing was scheduled for January 5, 2018. But the order canceling that hearing was issued on January 3, 2018—a mere two days before the parties were due in court. This two-day window is where the real lawyering happens. Imagine the flurry of phone calls, the redlined settlement drafts exchanged via email, and the strategic calculations of risk versus reward that led both sides to step back from the brink. This underscores a fundamental reality of the legal system: the primary goal is often resolution, not a zero-sum victory, in order to avoid the high cost of litigation, the uncertainty of a judge’s ruling, and the immense investment of time and emotional energy.

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2. Every Dispute is a Cog in a Larger Machine

While this case involved a dispute between an individual and a community association, the document reveals a surprisingly large cast of characters. Resolving the matter required the involvement of a complex network of official entities and professionals.

A quick scan of the order shows just how many parties are plugged into this single conflict:

• The Petitioner: Brian C. Herbert

• The Respondent: Blackstone at Vistancia Community Association

• The Adjudicating Body: The Office of Administrative Hearings

• The Law Firms: Carpenter, Hazlewood, Delgado & Bolen, PLC, and Titus Brueckner & Levine, PLC

• The Regulatory Body: The Arizona Department of Real Estate

But the story doesn’t end with a simple settlement between two parties. The order states the matter is being “remanded… to the Director of the Arizona Department of Real Estate for further action.” From a procedural standpoint, this is significant. Remanding means sending the case back to the original agency that handled it. What this signals is that a private agreement doesn’t necessarily end the state’s interest. The regulatory body still has a role to play, ensuring the settlement aligns with public rules or addressing any remaining compliance issues.

The document’s final page reinforces this, showing it was formally transmitted not just to the lawyers, but to a list of at least six different officials at the Arizona Department of Real Estate, ensuring the entire regulatory apparatus was kept in the loop. This machinery, while complex, ensures that even a local conflict is handled within a structured, accountable system of oversight.

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3. The Most Powerful Words Aren’t in the Verdict

We often search for resolution in a judge’s lengthy, detailed ruling, full of complex legal reasoning and citations. But in this case, the single phrase that resolves the entire matter is disarmingly simple. It’s a quiet declaration of fact, not a thundering judgment.

The order states that the hearing is being vacated for one direct reason:

…because they have reached a settlement.

This short clause is far more than procedural boilerplate; it represents a fundamental shift in power. A verdict is an imposed resolution, where a third party dictates the ending. A settlement, however, is an act of agency and control. It signifies that the parties have chosen to take the outcome out of a judge’s hands and write their own ending. These six words represent the power of negotiated resolution over imposed confrontation—a conclusion built by the parties themselves, who chose compromise to avoid the risks and costs of continued conflict.

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Conclusion: The Story in the Silence

A single, seemingly mundane administrative order tells a profound story about how our society manages conflict. It reveals that the real work often happens not in a noisy courtroom, but in a quiet agreement. It shows that even small disputes are handled by a vast, interconnected system designed to ensure fairness and order. And it reminds us that the most powerful outcome is often the one achieved through mutual consent.

This perceived lack of drama is not a bug in the system; it is the core feature of a stable civil society. The quiet, predictable processes and behind-the-scenes compromises are what we value over chaotic and uncertain public battles. The next time you encounter a piece of official jargon or a formal notice, what hidden story of conflict and resolution might be waiting to be discovered?

Case Participants

Petitioner Side

  • Paul Herbert (petitioner)
    Original petitioner in the related docket (18F-H1817002-REL); conceded he is the beneficiary, not the owner/trustee.
  • Brian C. Herbert (petitioner)
    Petitioner in docket 18F-H1817002-REL-RHG; identified as the trustee of the trust that owns the property.

Neutral Parties

  • Suzanne Marwil (ALJ)
    OAH
    Administrative Law Judge who issued the Recommended Order of Dismissal.
  • Diane Mihalsky (ALJ)
    OAH
    Administrative Law Judge who issued the Order Vacating Hearing due to settlement.
  • Judy Lowe (Commissioner)
    ADRE
  • M. Aguirre (staff)
    Listed in electronic transmission.
  • LDettorre (staff)
    ADRE
    Electronic transmission recipient.
  • AHansen (staff)
    ADRE
    Electronic transmission recipient.
  • djones (staff)
    ADRE
    Electronic transmission recipient.
  • DGardner (staff)
    ADRE
    Electronic transmission recipient.
  • ncano (staff)
    ADRE
    Electronic transmission recipient.

Other Participants

  • Stewart F. Salwin (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Lydia A. Peirce Linsmeier (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Jeffrey D. Harris (attorney)
    Titus Brueckner & Levine, PLC

James and Shawna Larson vs. Tempe Gardens Townhouse Corporation

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Case Summary

Case ID 17F-H1717038-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2017-12-11
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner James and Shawna Larson Counsel Lisa M. Hanger
Respondent Tempe Gardens Townhouse Corporation Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1255(C); CC&R sections 9 and 9(b)

Outcome Summary

The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).

Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.

Key Issues & Findings

Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.

Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).

Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1255(C)
  • CC&R section 9
  • CC&R section 9(b)
  • A.R.S. § 33-1212(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party
Additional Citations:

  • A.R.S. § 33-1255(C)
  • CC&R section 9
  • CC&R section 9(b)
  • A.R.S. § 33-1212(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092.09
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona

Video Overview

Audio Overview

Decision Documents

17F-H1717038-REL Decision – 605540.pdf

Uploaded 2026-04-24T11:05:44 (105.0 KB)

17F-H1717038-REL Decision – 583987.pdf

Uploaded 2026-04-24T11:05:48 (53.0 KB)

17F-H1717038-REL Decision – 585505.pdf

Uploaded 2026-04-24T11:05:53 (385.9 KB)

Briefing on Larson v. Tempe Gardens Townhouse Corporation

Executive Summary

This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.

The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.

In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.

Procedural History and Jurisdictional Rulings

Initial Petition and Dismissal Recommendation

On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.

Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.

This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:

• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”

• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.

• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.

• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.

Rejection of Dismissal and Re-Hearing

On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”

• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.

• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”

• This question was deemed sufficient to make the matter “ripe for adjudication.”

• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.

Analysis of the Merits of the Dispute

The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.

Respondent’s (HOA) Case

The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:

• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”

• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.

◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).

◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.

◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.

◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.

Petitioners’ (Larsons’) Case

The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.

• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.

• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:

◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.

◦ A second bid quoted $5,975 to remove and then replace the structure.

• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.

• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.

Final Administrative Law Judge Decision

On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.

Key Findings and Conclusions of Law

Finding/Conclusion

Details

Standard of Review

The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.

Reasonableness of HOA Action

Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.

HOA Authority

CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”

Patio Cover Classification

The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).

Cost Responsibility

The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”

Final Order

Based on these findings, the Administrative Law Judge ordered the following:

“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”

The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.

Study Guide: Larson v. Tempe Gardens Townhouse Corporation

This study guide provides a comprehensive review of the administrative case between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

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Short-Answer Quiz

Answer the following questions in 2-3 sentences each, based on the information in the provided source documents.

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

2. What was the initial reason given by Administrative Law Judge (ALJ) Suzanne Marwil for recommending the dismissal of the Larsons’ petition?

3. Why did the Commissioner of the Department of Real Estate, Judy Lowe, reject the initial recommendation for dismissal?

4. What was the central dispute that was ultimately decided in the November 20, 2017, hearing?

5. According to the final Administrative Law Judge Decision, what is the legal classification of the petitioners’ patio cover?

6. Which specific sections of the CC&Rs did the Respondent, Tempe Gardens Townhouse Corporation, cite as the basis for its authority?

7. What key reasons did project manager Wayne King provide to justify the necessity of removing the patio covers for the painting project?

8. Describe the significant difference in the cost estimates for removing and replacing the patio cover as presented by the Petitioners versus the Respondent’s project manager.

9. What was the final ruling regarding who was financially responsible for the removal and potential reinstallation of the patio cover?

10. What was the ultimate outcome of the Larsons’ petition following the final hearing, and which party was deemed the “prevailing party”?

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Answer Key

1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, the Tempe Gardens Townhouse Corporation, which is their homeowner’s association (HOA). The dispute arose from the HOA’s plan to repair and paint the building exteriors.

2. ALJ Marwil initially recommended dismissal due to a “lack of justiciable controversy.” She found that the Petitioners had failed to cite any provision of the CC&Rs that the Respondent had currently violated, as the threatened action to remove the patio cover was speculative and had not yet occurred.

3. Commissioner Lowe rejected the dismissal because she found the matter was “ripe for adjudication.” Her decision was based on a June 1, 2017 letter from the Respondent that questioned whether “the presence of the awning [is] a violation of the Association’s governing documents,” which she interpreted as the Respondent alleging a violation.

4. The central dispute was whether the Tempe Gardens Townhouse Corporation had the authority to mandate that homeowners, specifically the Larsons, remove their patio covers at their own expense to facilitate a building repair and painting project.

5. The final decision classifies the Petitioners’ patio cover as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4). This classification was crucial to determining financial responsibility.

6. The Respondent cited sections 9 and 9(b) of the CC&Rs. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the authority to take “Any cooperative action necessary or appropriate to the proper maintenance and upkeep” of those exteriors.

7. Wayne King testified that removal was necessary to properly and safely complete the work using scaffolding, as required by modern safety laws. He also stated that removal was needed to repair improperly flashed areas behind the covers and to ensure the painting contractor would provide a warranty for the project.

8. The Petitioners presented bids showing the cost to remove and rebuild the cover would be between $3,980 and $5,975. In contrast, Mr. King opined these estimates were very high and that the cost should be closer to $1,000 if existing materials were reused.

9. The final ruling, based on ARIZ. REV. STAT. section 33-1255(C), was that the Petitioners must bear the cost of removing the patio cover and, if they choose, the cost of reinstalling it. This is because the patio cover is a limited common element assigned specifically to their unit.

10. The final outcome was the dismissal of the Larsons’ petition. The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party in the matter.

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Essay Questions

The following questions are designed for a more in-depth analysis. Use the provided documents to construct a detailed, evidence-based response.

1. Trace the procedural history of this case from the initial filing to the final decision. Discuss the key turning points, including the initial recommendation for dismissal, its rejection by the Commissioner, and the reasoning behind the final judgment.

2. Analyze the legal arguments presented by both the Petitioners and the Respondent in the November 2017 hearing. On what specific statutes and CC&R provisions did each side rely, and how did the Administrative Law Judge ultimately interpret these documents?

3. Evaluate the role of expert testimony in this case, specifically focusing on the evidence provided by project manager Wayne King. How did his testimony regarding safety, project requirements, and cost estimates influence the Administrative Law Judge’s findings on the reasonableness of the Respondent’s actions?

4. Discuss the legal concept of a “limited common element” as defined and applied in the source documents. Explain how this classification was central to the final decision regarding financial responsibility for the patio cover’s removal and reinstallation.

5. The initial Administrative Law Judge found no “justiciable controversy,” while the Commissioner later found the matter “ripe for adjudication.” Based on the details in all three documents, explain the arguments for both positions and analyze why the case ultimately proceeded to a full hearing.

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

An official in the Office of Administrative Hearings who adjudicates complaints regarding condominium and planned community documents and ensures compliance with relevant statutes.

Covenants, Conditions, and Restrictions. The documents that govern the community and are described as a contract between the homeowner’s association and the homeowners.

Justiciable Controversy

A real dispute that a tribunal has the authority to resolve. The initial petition was recommended for dismissal for a lack of a justiciable controversy because the Respondent’s threatened actions were deemed speculative.

Limited Common Element

A legal classification for property defined under ARIZ. REV. STAT. section 33-1212(4). In this case, the Petitioners’ patio cover was classified as such, meaning any common expense associated with its maintenance, repair, or replacement is assessed against the unit to which it is assigned.

Petition

The formal document filed with the Department of Real Estate to initiate a complaint against a homeowner’s association.

Petitioner

The party that files a petition initiating a legal action. In this case, the homeowners James and Shawna Larson.

Preponderance of the Evidence

The standard of proof required in this matter, 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 is successful in a legal dispute. In the final order, the Respondent was deemed the prevailing party.

Respondent

The party against whom a petition is filed. In this case, the Tempe Gardens Townhouse Corporation.

Ripe for Adjudication

A term used by the Commissioner of the Department of Real Estate to indicate that a dispute is ready to be formally heard and decided by the Administrative Law Judge.

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17F-H1717038-REL-RHG

3 sources

These documents chronicle the legal dispute between James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent) concerning the removal of the Larsons’ patio cover for building maintenance. Initially, an Administrative Law Judge (ALJ) recommended dismissal because the Petitioners did not allege a current violation of the governing documents, thus lacking a justiciable controversy since the association had only threatened action. However, the Department of Real Estate Commissioner rejected this recommendation, asserting that a violation of the governing documents was alleged by the Respondent, making the matter ripe for adjudication. Following a rehearing, a different ALJ issued a final decision finding that the Respondent acted reasonably in requiring the patio cover removal for safe and proper painting and repairs, concluding that the Petitioners must bear the cost of removal and reinstallation as the cover is a limited common element.

3 sources

Based on 3 sources

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Case Participants

Petitioner Side

  • James Larson (petitioner)
  • Shawna Larson (petitioner)
  • Lisa M. Hanger (attorney)
    Counsel for Petitioners

Respondent Side

  • Nathan Tennyson (attorney)
    Brown Alcott PLLC
    Counsel for Respondent Tempe Gardens Townhouse Corporation
  • Wayne King (witness)
    Project manager hired by Respondent for the painting project; provided testimony

Neutral Parties

  • Suzanne Marwil (ALJ)
    Office of Administrative Hearings
    Authored Recommended Order Dismissal dated August 25, 2017
  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
    Authored Administrative Law Judge Decision dated December 11, 2017
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Rejected Recommendation of Dismissal
  • Dan Gardner (HOA coordinator)
    Transmitted documents (Order Rejecting Recommendation of Dismissal)

Other Participants

  • Chris Morga (contractor)
    Jacob and Co.
    Mentioned as a vendor who could remove patio covers