Case Summary
| Case ID |
17F-H1717037-REL |
| Agency |
ADRE |
| Tribunal |
OAH |
| Decision Date |
2017-09-06 |
| Administrative Law Judge |
Diane Mihalsky |
| Outcome |
loss |
| 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)
Decision Documents
17F-H1717037-REL Decision – 586501.pdf
Uploaded 2025-10-09T03:31:43 (117.9 KB)
17F-H1717037-REL Decision – 588547.pdf
Uploaded 2025-10-09T03:31:43 (1013.5 KB)
Briefing Doc – 17F-H1717037-REL
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 – 17F-H1717037-REL
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.
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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.
Blog Post – 17F-H1717037-REL
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.
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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.
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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
