Michelle Ruffo vs. Reflections in the Catalinas Condo Association

Posted on October 3, 2018 by [email protected]

Case Summary

Case ID	18F-H1818044-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-10-03
Administrative Law Judge	Diane Mihalsky
Outcome	The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michelle Ruffo	Counsel	—
Respondent	Reflections in the Catalinas Condo Association	Counsel	Nathan Tennyson

Alleged Violations

A.R.S. §§ 33-1242, 33-1248, 33-1803(A), 33-1803(B), 33-1805; CC&Rs §§ 1.36, 1.38, 4.7, 2.8.3

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.

Why this result: Petitioner continually violated CC&R § 4.7 and failed to prove Respondent violated any CC&R or statute, particularly as A.R.S. § 33-1242 did not apply to disputes concerning the use of limited common elements.

Key Issues & Findings

HOA violation of CC&Rs and Statutes by imposing parking fines

Petitioner challenged the HOA's decision to assess continuous fines against her account totaling $2,544.00 for repeatedly parking in spaces that were not assigned to her unit 52, arguing the fines and enforcement lacked proper statutory process and violated CC&Rs. The ALJ found that Petitioner failed to meet her burden of proof and that the statute cited (A.R.S. § 33-1242) concerning property condition notices did not apply to this dispute regarding limited common elements (parking spaces).

Orders: Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1242
A.R.S. § 33-1803
CC&R § 4.7
CC&R § 2.8.3

Analytics Highlights

Topics: parking violation, fines, HOA enforcement, limited common elements, due process, Arizona Department of Real Estate

Additional Citations:

A.R.S. § 32-2199
A.R.S. § 33-1242
A.R.S. § 33-1248
A.R.S. § 33-1803
A.R.S. § 33-1805
A.R.S. § 12-349
CC&R § 4.7
CC&R § 2.8.3

Video Overview

Audio Overview

Decision Documents

18F-H1818044-REL Decision – 663567.pdf

Uploaded 2026-04-24T11:12:35 (270.9 KB)

18F-H1818044-REL Decision – 663567.pdf

Uploaded 2026-01-23T17:24:18 (270.9 KB)

Briefing Document: Ruffo v. Reflections in the Catalinas Condo Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in case number 18F-H1818044-REL, involving Petitioner Michelle Ruffo and Respondent Reflections in the Catalinas Condo Association. The core of the dispute centers on a series of fines levied by the Association against Ms. Ruffo for repeatedly parking in condominium parking spaces not assigned to her unit.

The Petitioner argued that she had informal written permission from other residents to use their spaces, that the Association’s notices of violation were procedurally flawed, that she was the victim of retaliatory harassment, and that her own assigned space was frequently occupied by others. The Respondent maintained that its actions were in strict accordance with the community’s Covenants, Conditions, and Restrictions (CC&Rs), which unambiguously require owners to use only their assigned parking spaces and outline a formal process for reallocating them, a process the Petitioner did not follow.

The ALJ ultimately denied the petition, finding that Ms. Ruffo failed to meet her burden of proof. The decision concluded that the Association acted within its rights, that its enforcement actions were consistent with its governing documents, and that the Petitioner’s reliance on informal agreements represented the very “evils that the CC&Rs were designed to prevent.” As of the hearing date, the outstanding balance of fines, interest, and fees on the Petitioner’s account totaled $2,544.00.

Case Background

Parties Involved

Name / Entity

Representation / Key Details

Petitioner

Michelle Ruffo

Owner of unit 52, assigned parking space #131. Appeared on her own behalf.

Respondent

Reflections in the Catalinas Condo Assoc.

The condominium unit owners’ association. Represented by Nathan Tennyson, Esq. of Brown Olcott, PLLC.

Adjudicator

Diane Mihalsky

Administrative Law Judge, Office of Administrative Hearings.

Witnesses

Carol Lundberg

Testified for the Petitioner.

Vanessa Chapman Lubinsky & Gabino Trejo

Former and current property managers, respectively, who testified for the Respondent.

Core Dispute

The central issue is the Association’s imposition of fines against Ms. Ruffo for violating the community’s parking regulations. On or about April 17, 2018, Ms. Ruffo filed a petition alleging the Association violated its CC&Rs and several Arizona statutes by fining her for parking in spaces #38 and #40, which were not assigned to her unit #52. The Association denied any violation, asserting it was enforcing valid community rules.

Chronology of the Dispute

The conflict escalated over a period of approximately two years, marked by a series of notices, fines, and failed attempts at resolution.

• August 2, 2016: The Association sends a “Friendly Reminder” to Ms. Ruffo to cease parking in space #40 and use her assigned space, #131.

• August 5, 2016: A “Notice of Violation” is sent for the same issue, serving as a second warning.

• March 14, 2017: A “Final Non-Compliance Notice” is issued, noting violations in both space #40 and #38. The notice informs Ms. Ruffo of her right to a hearing with the Board of Directors if requested within 14 days.

• March 30, 2017: The first fine of $50.00 is assessed after Ms. Ruffo’s vehicle is again observed in space #38.

• April 17, 2017: Ms. Ruffo responds in writing, claiming she has permission to use the spaces and requests the fine be waived.

• April 27, 2017: The Association’s Board reviews and denies the waiver request. Ms. Ruffo was invited to address the Board but did not attend.

• June 6, 2017: A $200.00 fine is assessed for two observed violations in space #40.

• June 26, 2017: Another $200.00 fine is assessed for violations in spaces #40 and #38.

• July 11, 2017: The Association warns that access to community amenities (pool, fitness room) will be denied if fines remain unpaid. This action is later taken.

• August 31, 2017: A Board meeting is scheduled for Ms. Ruffo and her attorney, Mark F. Williman, to attend. Neither party attends, and they fail to provide advance notice. The Association incurs a $200 legal fee for its attorney’s attendance.

• September 25, 2017: Fines totaling $1,400.00 are assessed for multiple observed violations.

• September 27, 2017: The Association attempts to tow Ms. Ruffo’s vehicle. The attempt is aborted after she refuses to exit the vehicle and calls the Pima County Sheriff’s Office.

• October 4, 2017: The Association’s attorney informs Ms. Ruffo that another hearing will not be scheduled until she reimburses the Association for the $200 legal fee from the missed August 31 meeting.

• October 2017 – January 2018: A series of additional fines are assessed for ongoing violations, and Ms. Ruffo sends multiple letters requesting a hearing and protesting the fines and the $200 reimbursement requirement.

• April 17, 2018: Ms. Ruffo files the formal petition with the Arizona Department of Real Estate.

• September 18, 2018: The evidentiary hearing is held before the Office of Administrative Hearings.

Analysis of Arguments and Evidence

Petitioner’s Position (Michelle Ruffo)

Ms. Ruffo’s defense was multi-faceted, based on claims of permission, procedural errors by the Association, and alleged harassment.

• Claim of Permission: Ms. Ruffo testified that since 2005, she had been parking in spaces #38 and #40 with written permission. She claimed a 2006 agreement with the Morleys, then owners of unit #56, for space #40. She also submitted a 2018 email from Julie Ruiz, a tenant in unit #53, granting permission to use space #38.

• Allegations of Improper Notices: She argued the Association’s notices violated A.R.S. § 33-1242(C) because they did not always identify the person who observed the violation or provide photographic evidence.

• Allegations of Harassment and Retaliation: Through an attorney, Ms. Ruffo alleged she was being “unlawfully discriminated against and harassed in retaliation for her role related to allegations that HOA President Mitch Treese misappropriated HOA funds.” The ALJ noted that no evidence was submitted at the hearing to support this claim.

• Counter-Evidence: Ms. Ruffo submitted photographs dated from October 2016 to July 2017 showing other vehicles, including those of Associa maintenance and a landscaping contractor, parked in her assigned space #131.

• Dispute over Hearing Preconditions: She argued that the Association’s demand for a $200 reimbursement for its attorney’s fees as a condition for a new hearing was unlawful and not permitted under the CC&Rs.

Respondent’s Position (The Association)

The Association’s case rested on the explicit language of its governing documents and its adherence to established enforcement procedures.

• Primacy of the CC&Rs: The Association argued that its governing documents are unambiguous. Section 4.7 explicitly forbids owners from parking in any space other than the one assigned to their unit as a Limited Common Element.

• Formal Reallocation Process: Per Section 2.8.3, reallocating a Limited Common Element like a parking space requires a formal, written amendment executed by the unit owners involved and submitted to the Board for approval. Ms. Ruffo never followed this procedure.

• Rejection of Informal Agreements: The property manager testified that such private agreements are not legally binding or enforceable by the Association and create confusion, as evidenced by complaints from subsequent owners and tenants who were unable to use their assigned spaces.

• Adherence to Enforcement Policy: The Association followed its documented Violation Enforcement Policy, starting with a friendly reminder and escalating to formal notices and fines for continued non-compliance.

• Opportunity to Be Heard: Ms. Ruffo was provided opportunities to address the Board on April 27, 2017, and August 31, 2017. She failed to attend either meeting, and her failure to provide notice for the latter caused the Association to incur unnecessary legal fees.

• Witness Testimony: The former property manager, Ms. Chapman, testified that she had personally witnessed all the charged violations.

Governing Documents and Statutes

The case hinged on the interpretation of the Association’s CC&Rs and relevant Arizona state law.

Key CC&R Provisions

Section

Provision

Relevance

Motor Vehicles: “no Owner, Lessee or Occupant may park any . . . motor vehicle . . . in any Parking Spaces other than the Parking Space assigned to the Unit as a Limited Common Element.”

The central rule that the Petitioner was found to have repeatedly violated.

§ 2.8.3

Reallocation of Limited Common Elements: A reallocation requires a formal, recorded amendment executed by the owners and submitted to the Board.

The official procedure for changing parking space assignments, which the Petitioner did not follow for her informal agreements.

§ 13.1

Enforcement: Grants the Association the right to impose monetary penalties, suspend an owner’s right to use facilities, and tow vehicles in violation of the rules, after notice and an opportunity to be heard.

Provides the legal authority within the governing documents for the Association’s actions (fines, suspension of amenity access, attempted tow).

§ 1.36

“Parking Space” Definition: Defines a parking space as a portion of the Limited Common Elements.

Legally classifies the disputed parking spaces, making them subject to the rules governing Limited Common Elements.

Arizona Revised Statutes (A.R.S.)

The Petitioner cited A.R.S. § 33-1242(C), which requires an association, upon written request from an owner, to provide details of an alleged violation, including the observer’s name and the date. The ALJ determined this statute was inapplicable to the dispute. The judge’s reasoning was that the statute applies specifically to notices regarding the “condition of the property owned by the unit owner” (i.e., her physical condo unit #52), not her use of Limited Common Elements like parking spaces, which she does not own.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was a conclusive denial of the petition, siding entirely with the Association.

Final Order: “IT IS ORDERED that Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied because Petitioner has not established that Respondent violated the CC&Rs or any statute in assessing fines against her for her repeated violations of CC&R § 4.7 by parking in spaces that were not assigned to her unit #52.”

Key Legal Conclusions

• Burden of Proof: The Petitioner bore the burden of proving her claims by a preponderance of the evidence and failed to do so.

• Unambiguous Covenants: The CC&Rs regarding parking are unambiguous and must be enforced to give effect to the intent of the parties. CC&R § 4.7 clearly requires owners to park in their assigned spaces.

• Invalidity of Informal Agreements: The ALJ found that the Petitioner’s reliance on informal agreements illustrated “the evils that the CC&Rs were designed to prevent.” These undocumented side deals create instability and conflict when properties are sold or new tenants arrive, undermining the security and order of the community’s parking plan.

• Respondent’s Proper Conduct: The Association was found to have followed its own enforcement policy and provided the Petitioner with opportunities to be heard.

• Attorney’s Fee Condition: While the CC&Rs do not explicitly authorize charging an owner for attorney’s fees as a precondition for a hearing, the ALJ noted that A.R.S. § 33-1242(A)(18) allows an association to “exercise any . . . powers necessary and proper for the governance and operation.” Furthermore, civil statutes often require a party to pay for fees they cause an opponent to incur unnecessarily.

• Futility of a Board Hearing: The ALJ concluded that, in light of the Petitioner’s arguments and her “continued violation of Respondent’s parking policy over nearly two years,” a hearing before the Association’s Board would not have changed her behavior or the outcome of the matter.

Financial Implications

The conflict resulted in significant financial penalties for the Petitioner. The fines were assessed on an escalating basis for continued violations.

• March 30, 2017: $50.00

• June 6, 2017: $200.00

• June 26, 2017: $200.00

• August 9, 2017: $200.00

• September 25, 2017: $1,400.00

• October 17, 2017: $100.00

• November 6, 2017: $100.00

As of the hearing on September 18, 2018, the total outstanding balance on Ms. Ruffo’s account, including interest and certified letter fees, was $2,544.00.

Study Guide: Ruffo v. Reflections in the Catalinas Condo Association

This guide is designed to review and assess understanding of the Administrative Law Judge Decision in case number 18F-H1818044-REL, Michelle Ruffo v. Reflections in the Catalinas Condo Association.

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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 primary parties in this case, and what is the central dispute between them?

2. What was the Petitioner’s main justification for parking in spaces that were not assigned to her unit?

3. According to the Association’s CC&Rs, what is the formal procedure required to reallocate a Limited Common Element, such as a parking space?

4. Describe the key enforcement actions the Condo Association took against the Petitioner in response to the ongoing parking violations.

5. Why did the Administrative Law Judge determine that Arizona Revised Statute § 33-1242(B) and (C) did not apply in this case?

6. Summarize the incident involving the tow truck on September 27, 2017.

7. What reason did the Association’s attorney provide for requiring the Petitioner to pay a $200 fee before another hearing would be scheduled?

8. What evidence did the Petitioner submit to demonstrate that her own assigned parking space, #131, was frequently occupied by others?

9. Identify the two property managers who provided telephonic testimony on behalf of the Respondent.

10. What was the final ruling in this case, and what was the judge’s primary reason for this decision?

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Answer Key

1. The primary parties are Michelle Ruffo, the Petitioner and owner of unit 52, and Reflections in the Catalinas Condo Association, the Respondent. The central dispute is over fines imposed by the Association against Ms. Ruffo for her repeated violations of parking rules by parking in spaces not assigned to her unit.

2. The Petitioner justified her actions by claiming she had long-standing written permission from other unit owners or tenants to use their spaces. Specifically, she cited a 2006 agreement with the owners of unit #56 to use space #40 and more recent permission from a tenant in unit #53 to use space #38.

3. According to Section 2.8.3 of the CC&Rs, reallocating a Limited Common Element requires an amendment to the Declaration. This amendment must be executed by the owners involved, state how the element is being reallocated, and be submitted to the Board of Directors for approval before it can be recorded.

4. The Association’s enforcement actions escalated over time, beginning with a “Friendly Reminder” and moving to a “Notice of Violation” and a “Final Non-Compliance Notice.” Subsequently, the Association assessed escalating monetary fines, suspended the Petitioner’s access to amenities like the pool and fitness room, and attempted to have her vehicle towed.

5. The judge ruled the statute did not apply because it specifically pertains to written notices about the condition of the property owned by the unit owner. The dispute in this case was not about the condition of Ms. Ruffo’s unit (#52) but about her use of Limited Common Elements (parking spaces) that were not assigned to her.

6. On September 27, 2017, the Association attempted to tow the Petitioner’s vehicle from a space not assigned to her. The Petitioner was inside her vehicle and refused to leave, calling the Pima County Sheriff’s Office. The responding officer instructed the tow truck driver to remove the equipment and try again at another time.

7. The Association required the $200 fee to reimburse it for the attorney’s fees it incurred for a Board meeting scheduled on August 31, 2017. The Petitioner and her attorney at the time, Mr. Williman, failed to attend this meeting and did not provide notice of their absence until a few minutes before it was scheduled to begin.

8. The Petitioner submitted a series of dated photographs showing various other vehicles parked in her assigned space, #131. These vehicles included maintenance trucks bearing the Associa logo, a landscaping contractor’s truck and trailer, and several other private cars.

9. The two property managers who testified for the Respondent were Gabino Trejo, the current manager, and Vanessa Chapman Lubinsky (referred to as Ms. Chapman), the former manager.

10. The final ruling was a denial of Michelle Ruffo’s petition. The judge found that the Petitioner had not established that the Respondent violated any CC&Rs or statutes, concluding that the Association was justified in assessing fines for her repeated and clear violations of CC&R § 4.7, which requires owners to park in their assigned spaces.

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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 to each, structuring your answer in a standard essay format.

1. Analyze the arguments and evidence presented by both the Petitioner and the Respondent. Discuss the specific CC&R sections, witness testimonies, and exhibits each side used to support their claims, and explain why the Administrative Law Judge ultimately found the Respondent’s position more convincing.

2. The concept of “Limited Common Elements” is central to this case. Using the definitions provided in the CC&Rs (Sections 1.31, 1.36, and 2.8.1(e)), explain the legal significance of this designation in the dispute over parking spaces. How did the specific rules for reallocating these elements (CC&R § 2.8.3) undermine the Petitioner’s primary defense?

3. Trace the timeline of communication and escalating enforcement actions taken by the Reflections in the Catalinas Condo Association against Michelle Ruffo, beginning with the “Friendly Reminder” in August 2016. Evaluate whether the Association followed its own Violation Enforcement Policy and the powers granted to it in the CC&Rs throughout this process.

4. Discuss the role of legal representation and the various attorneys involved in this case (Nathan Tennyson, Mark F. Williman, Eric J. Thomae, Jonathan Olcott). How did their actions, communications, and, in one instance, inaction, impact the proceedings and the relationship between the Petitioner and the Respondent?

5. The Petitioner argued that her right to due process was violated because the violation notices she received did not contain photographs or identify the person who observed the violation. Explain the Administrative Law Judge’s legal reasoning for rejecting this argument, specifically referencing the interpretation of A.R.S. § 33-1242 and the distinction made between a violation concerning the “condition of the property owned” versus the use of common elements.

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Glossary of Key Terms and Entities

Term / Entity

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings. In this case, Diane Mihalsky presided over the hearing at the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified laws of the state of Arizona. Several statutes, including those under Title 33 (Property) and Title 32 (Professions and Occupations), were cited in the case.

Associa Property Management Services

The property management company employed by the Respondent to manage the condominium complex. Both Ms. Chapman and Mr. Trejo were employees of Associa.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that set out the guidelines for a planned community or condominium. The CC&Rs define the rights and obligations of the homeowners’ association and its members.

Gabino Trejo

The current property manager for the Respondent at the time of the hearing.

Limited Common Elements

As defined in CC&R § 1.31, a portion of the Common Elements allocated for the exclusive use of one or more, but fewer than all, of the Units. Parking spaces are explicitly defined as Limited Common Elements.

Mark F. Williman, Esq.

An attorney and friend of the Petitioner who agreed to help her resolve issues with the Board. He failed to attend a scheduled Board meeting on her behalf on August 31, 2017.

Michelle Ruffo

The Petitioner in the case, owner of condominium unit 52, and member of the Respondent association.

Parking Space

As defined in CC&R § 1.36, a portion of the Limited Common Elements intended for parking a single motor vehicle and allocated to a specific Unit Owner for their exclusive use.

Petitioner

The party who files a petition or brings an action in a legal proceeding. In this case, Michelle Ruffo.

Preponderance of the Evidence

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

Reflections in the Catalinas Condo Association

The Respondent in the case; the condominium unit owners’ association for the development where the Petitioner resides.

Respondent

The party against whom a petition is filed or an action is brought. In this case, the Reflections in the Catalinas Condo Association.

Vanessa Chapman Lubinsky (Ms. Chapman)

The former property manager for the Respondent (from 2012 to early 2018) who handled most of the interactions and sent most of the violation notices to the Petitioner.

Violation Enforcement Policy

The Respondent’s official policy that outlines the procedure for addressing violations, including sending a “Friendly Reminder” and a “Notice of Violation,” and provides for a hearing if requested within 14 days.

How a Parking Spot Deal Led to a Tow Truck Standoff and a $2,544 HOA Bill: 4 Lessons

Introduction: The Handshake Deal That Cost a Fortune

It’s a common scenario in community living: you make a friendly, informal agreement with a neighbor. Maybe you agree to switch parking spots for convenience or let them use your guest pass. These simple handshake deals seem harmless, but what happens when they collide with the ironclad rules of a homeowners’ association (HOA)?

The real-life case of Michelle Ruffo and her condo association serves as a stark cautionary tale. A long-standing, informal parking arrangement escalated into a bitter dispute that culminated in a tow truck standoff, loss of amenities, and a final bill for $2,544 in fines and fees. This case reveals several surprising and critical lessons for anyone living in a community governed by an association.

1. Your Neighbor’s Permission Can Be Legally Worthless

The core of the dispute was Ms. Ruffo’s belief that she had the right to park in spaces other than her own. Since 2006, she had an agreement with another owner to use space #40. Later, she began parking in space #38, believing she had permission from that unit’s tenant. From her perspective, she had done her due diligence. This is the core conflict in community living: the perceived authority of a neighbor’s handshake versus the legal authority of the governing documents.

The association, however, operated under its official Covenants, Conditions, and Restrictions (CC&Rs). Those documents told a different story.

• Section 4.7 explicitly required owners to park only in their assigned spaces.

• Section 2.8.3 detailed the only valid procedure for changing parking allocations. Because parking spaces are “Limited Common Elements,” any reallocation required a formal, written amendment executed by the unit owners involved, submitted to the Board for approval, and then officially recorded.

Crucially, the property manager testified that the owner of the unit assigned to space #38 had explicitly denied giving Ms. Ruffo permission and reported that his tenants were complaining. Because Ms. Ruffo never followed the formal procedure, her informal agreements were not recognized or enforceable. The Administrative Law Judge’s decision highlighted the critical importance of these rules:

Because Petitioner never submitted any written agreement with another owner regarding reallocation of parking spaces to Respondent’s Board for its tacit approval, as CC&R § 2.8.3 requires, subsequent tenants and owners have no notice of Petitioner’s alleged agreements with their predecessors regarding parking spaces. If everyone adopted Petitioner’s sense of entitlement as to parking spaces at the Reflections, no one would be able to park their car with any security or plan.

2. Ignoring Official Notices Leads to More Than Just Fines

This conflict didn’t begin with a massive fine. The property management company, Associa, followed a documented escalation process that provided Ms. Ruffo with multiple opportunities to comply. For any homeowner, this documented paper trail should have been a five-alarm fire, signaling a problem that required immediate and formal resolution.

The warnings began on August 2, 2016, with a “Friendly Reminder,” followed by a “Notice of Violation” and a “Final Non-Compliance Notice.” The first fine of just $50 wasn’t assessed until March 30, 2017. But as the violations continued, so did the consequences. After a July 11, 2017 letter, the association shut off Ms. Ruffo’s “electric-key access to the pool and fitness center for the community,” a tangible loss of amenities.

The financial penalties then began to skyrocket. Fines of $200 were assessed in June and August. Then, on September 25, 2017, the association dropped the hammer: a single letter assessing $1,400 for 14 separate observed violations. Just two days later, on September 27, the dispute reached its climax. The association attempted to tow Ms. Ruffo’s vehicle. She was inside the car and refused to leave, prompting her to call the Sheriff’s Office to intervene. The situation had moved from letters and fines to a physical standoff in the parking lot.

3. Skipping a Hearing Can Get You a Bill for the HOA’s Lawyer

After retaining an attorney, Ms. Ruffo was scheduled to have her case heard by the Board on August 31, 2017. The association, anticipating a formal legal discussion, also had its own attorney present. In any formal dispute, failing to appear at your own requested hearing is a critical error. In this case, it not only cost Ruffo credibility but also came with an immediate invoice.

Minutes before the meeting, while the Board and its lawyer were waiting, Ruffo’s attorney sent a message that neither he nor his client would be attending. This last-minute cancellation had a direct financial consequence. The association’s attorney charged it $200 for the time spent on the aborted meeting. The Board then refused to schedule another hearing until Ms. Ruffo reimbursed the association for that $200 fee. This failure to engage was immediately followed by the association’s most severe actions: the $1,400 fine and the attempt to tow her vehicle.

4. “But They Do It Too!” Is Not a Winning Legal Defense

A common response to a violation notice is to point out that others are breaking the rules as well. Ms. Ruffo attempted this strategy, presenting photographic evidence that her own assigned space, #131, was frequently occupied by other vehicles, including maintenance vans bearing the property management company’s logo.

While the property manager testified that she had addressed the issue with the maintenance crew, the Judge ultimately found this argument unpersuasive. The ruling contained a crucial insight: The lesson isn’t just that this defense failed, but why it failed. The Judge noted that Ms. Ruffo “did not present any evidence… that she made any effort to report others parking in her assigned space when there was something that the property manager or Respondent could have done about it.” By failing to formally and properly report her own issue, she undermined her claim that the association was negligent, making it impossible to excuse her own persistent violations.

Conclusion: Read the Fine Print Before You Shake On It

This case serves as a powerful reminder of a fundamental truth of community living: in an HOA, the official, written governing documents are the ultimate authority. Informal “handshake deals,” no matter how reasonable they seem, can lead to serious consequences when they conflict with the rules. This dispute didn’t just involve letters; it led to escalating fines, the loss of amenities, a physical standoff with a tow truck, and ultimately a legal judgment.

This entire conflict, which cost thousands of dollars and countless hours, started with a parking spot—when was the last time you read your community’s rules?

Case Participants

Petitioner Side

Michelle Ruffo (petitioner)
Appeared on her own behalf.
Carol Lundberg (witness)
Resides in Unit 45; presented testimony by Petitioner.
Julie Ruiz (witness)
Unit 53 Tenant
Provided email confirming she gave Petitioner permission to park in Unit 53's space.
Mark F. Williman (attorney)
Retained by Petitioner; failed to attend the August 31, 2017 Board meeting.
Eric J. Thomae (attorney)
Retained by Petitioner sometime after October 24, 2017.

Respondent Side

Nathan Tennyson (HOA attorney)
Brown Olcott, PLLC
Vanessa Chapman Lubinsky (property manager)
Associa Property Management Services
Former manager; referred to as Ms. Chapman in the decision.
Gabino Trejo (property manager)
Associa Property Management Services
Current manager.
John Pohlig (unit owner)
Owner of unit assigned space #38; communicated he had not given Petitioner permission to park there.
Jonathan Olcott (HOA attorney)
Mitch Treese (HOA president)
Alleged by Petitioner's attorney to have misappropriated HOA funds.

Neutral Parties

Diane Mihalsky (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Felicia Del Sol (administrative staff)
Transmitted decision electronically.

Thomas P. Satterlee vs. Green Valley Country Club Vistas II Property

Posted on September 25, 2018 by [email protected]

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

Case Summary

Case ID	18F-H1817022-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2018-09-25
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The petition was dismissed with prejudice upon rehearing because the Administrative Law Judge confirmed that the Respondent HOA did not meet the statutory definition of a 'planned community,' thereby depriving the OAH and ADRE of subject matter jurisdiction.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Thomas P. Satterlee	Counsel	—
Respondent	Green Valley Country Club Vistas II Property Owner's Association	Counsel	James A. Robles

Alleged Violations

A.R.S. § 33-1802(4)

Outcome Summary

The petition was dismissed with prejudice upon rehearing because the Administrative Law Judge confirmed that the Respondent HOA did not meet the statutory definition of a 'planned community,' thereby depriving the OAH and ADRE of subject matter jurisdiction.

Why this result: The ALJ narrowly interpreted the statutory term 'roadway' to mean the part of the road intended for vehicles, excluding the landscaping maintenance performed by the HOA.

Key Issues & Findings

Subject Matter Jurisdiction: Planned Community Status

This issue was heard on rehearing. Petitioner argued that the maintenance of entrance landscaping constituted maintaining 'roadways' by interpreting the statutory term broadly, citing the 'Complete Streets' approach and Pima County right-of-way documents. The ALJ affirmed the original decision, holding that the plain meaning of 'roadway' is the part of the road intended for vehicles, not the entire right-of-way, and thus jurisdiction was lacking.

Orders: Petitioner’s petition is dismissed with prejudice because the Office of Administrative Hearings and the Arizona Department of Real Estate lack subject matter jurisdiction over the dispute.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1802
Ariz. Bd. of Regents for & on Behalf of Univ. of Ariz. v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150, 156 (App. 1989)
Swichtenberg v. Jack Brimer, 171 Ariz. 77, 828 P.2d 1218 (App. 1991)
Villa De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, 95 (App. 2011)
Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 561 (App. 1993)
Sunrise Desert Vistas v. Salas, 1 CA-CV 14-052 (Ct. App. 2016)

Analytics Highlights

Topics: Jurisdiction, Planned Community, A.R.S. 33-1802, Roadway Definition, Rehearing, HOA Dispute, Statutory Interpretation

Additional Citations:

A.R.S. § 33-1802
Ariz. Bd. of Regents for & on Behalf of Univ. of Ariz. v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150, 156 (App. 1989)
Swichtenberg v. Jack Brimer, 171 Ariz. 77, 828 P.2d 1218 (App. 1991)
Villa De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, 95 (App. 2011)
Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 561 (App. 1993)
Sunrise Desert Vistas v. Salas, 1 CA-CV 14-052 (Ct. App. 2016)

Video Overview

Audio Overview

Decision Documents

18F-H1817022-REL-RHG Decision – 661827.pdf

Uploaded 2026-01-23T17:23:02 (130.3 KB)

Jurisdictional Analysis in Satterlee v. Green Valley Country Club Vistas II POA

Executive Summary

This document outlines the legal analysis and final decision in case number 18F-H1817022-REL, wherein the Office of Administrative Hearings (OAH) dismissed a petition filed by Thomas P. Satterlee against the Green Valley Country Club Vistas II Property Owner’s Association. The dismissal was based on a lack of subject matter jurisdiction.

The central issue was whether the Respondent association qualified as a “planned community” under Arizona statute A.R.S. § 33-1802(4). This determination hinged entirely on the interpretation of the phrase “covenant to maintain roadways.” The Petitioner argued that the association’s maintenance of landscaping at the community’s entrance constituted roadway maintenance, asserting a broad definition of “roadway” that encompassed the entire right-of-way, supported by the modern civil engineering concept of “Complete Streets.”

The Administrative Law Judge (ALJ) rejected this argument, concluding that the plain meaning of “roadway” refers specifically to the portion of a road used by vehicles. The ALJ noted that the state legislature used the specific term “roadway” in a 2014 statutory amendment, even though the broader “Complete Streets” concept was already well-established, indicating a deliberate choice of the narrower term. Ultimately, because the association’s activities did not include maintaining roadways, it was not deemed a “planned community,” and therefore, the OAH and the Arizona Department of Real Estate lacked jurisdiction to hear the case. The petition was dismissed with prejudice.

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Case Overview and Procedural History

The matter of Thomas P. Satterlee v. Green Valley Country Club Vistas II Property Owner’s Association (Case No. 18F-H1817022-REL) was adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a dispositive motion concerning the OAH’s subject matter jurisdiction over the Respondent association.

• January 26, 2018: The Respondent filed a Motion to Dismiss, arguing the OAH lacked jurisdiction because the association was not a “planned community” as defined by A.R.S. § 33-1802(4).

• March 15, 2018: Following oral arguments, the ALJ issued an initial decision finding that the OAH lacked jurisdiction and dismissed the petition.

• April 10, 2018: The Petitioner filed a Homeowner’s Association (HOA) Dispute Rehearing Request with the Arizona Department of Real Estate.

• May 3, 2018: The Commissioner granted the Petitioner’s request for a rehearing.

• September 5, 2018: A new round of oral arguments was held, focusing again on the dispositive jurisdictional issue.

• September 25, 2018: The ALJ issued a final decision, once again dismissing the petition with prejudice for lack of subject matter jurisdiction.

The Central Jurisdictional Question

The jurisdiction of the Office of Administrative Hearings and the Arizona Department of Real Estate in this matter was entirely dependent on whether the Respondent association met the statutory definition of a “planned community.” A lack of subject matter jurisdiction is a non-waivable issue that voids any administrative decisions made without it.

The pivotal question was whether the association’s maintenance of landscaping around the walls and sign at the community entrance constituted a “covenant to maintain roadways,” which is a key criterion in the statute.

Statutory Framework: A.R.S. § 33-1802(4)

The relevant statute, A.R.S. § 33-1802(4), defines a “planned community” as:

“…a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation or unincorporated association of owners…”

A 2014 amendment to this statute added the language regarding an “easement to maintain roadways or a covenant to maintain roadways.” Before this amendment, an association had to own real property to be considered a planned community.

Arguments of the Parties

The dispute centered on the interpretation of the single word “roadways” within the statute.

Petitioner’s Position (Thomas P. Satterlee)

The Petitioner argued for a broad and expansive interpretation of “roadway,” asserting that it should include the entire right-of-way.

• Core Argument: The developer built walls and an entrance sign, and the Respondent’s subsequent maintenance of the surrounding landscaping constitutes a “covenant to maintain roadways.”

• “Complete Streets” Concept: The Petitioner presented extensive documentation to argue that the modern civil engineering approach of “Complete Streets” supports his interpretation. This concept treats the entire transportation corridor—including sidewalks, bicycle lanes, transit stops, and landscaping—as an integrated system for all users.

• Equivalency of Terms: The Petitioner claimed that “roadway” is the “new word for ‘street'” and that the “roadway” encompasses the entire width of the “right-of-way.”

• Evidence Presented: The Petitioner submitted numerous documents to support his claim, including:

◦ A letter from the Pima County Director of Transportation confirming the association’s maintenance of landscaping.

◦ Excerpts from the Pima County Roadway Design Manual (RDM).

◦ Pima County Board of Supervisors policies on landscaping in the right-of-way.

◦ Website printouts from the U.S. Department of Transportation, Federal Highway Administration, and other entities defining “Complete Streets.”

◦ Pima County Code of Ordinances related to roadway projects.

Respondent’s Position (Green Valley Country Club Vistas II POA)

The Respondent advocated for a strict, plain-meaning interpretation of the statute.

• Core Argument: The maintenance of landscaping does not constitute the maintenance of a “roadway.”

• Legislative Intent: The Respondent argued that the Arizona legislature deliberately chose the specific term “roadway” when it amended the statute in 2014. By that time, the “Complete Streets” concept was well-known. Had the legislature intended a broader scope, it could have used terms like “right-of-way” or “Complete Streets,” but it did not.

• Conclusion: Because the association does not have a covenant to maintain roadways, it does not meet the statutory definition of a “planned community,” and therefore the state agencies lack jurisdiction.

Administrative Law Judge’s Analysis and Decision

The ALJ’s decision was grounded in principles of statutory construction, focusing on the plain meaning of the legislative language.

The ALJ began with the legal principle that when construing statutes, a court must first look to the language of the statute and give the words their plain meaning, presuming the legislature expressed its meaning as clearly as possible.

To determine the plain meaning, the ALJ consulted numerous dictionary definitions of “roadway” and “street.”

Source

Definition of “Roadway”

English Oxford Living Dict.

“The part of a road intended for vehicles, in contrast to the pavement or verge.”

Merriam-Webster

“the part of a street reserved for vehicles.”

Dictionary.com

“The part of a road over which vehicles travel; road.”

Cambridge Dictionary

“the part of the road on which vehicles drive.”

American Heritage Dictionary

“A road, especially the part over which vehicles travel.”

Oxford Learner’s Dictionaries

“a road or the part of a road used by vehicles.”

The ALJ concluded that the consistent, plain meaning of “roadway” is the portion of a road upon which vehicles travel, distinct from adjacent areas like sidewalks or landscaping.

The ALJ found the Petitioner’s evidence regarding the “Complete Streets” concept to be irrelevant to the statutory interpretation. The decision noted that because the legislature amended the statute after this concept was widely adopted but chose to use the narrower term “roadway,” it signaled a clear intent not to encompass the entire right-of-way. The ALJ stated:

“Had the legislature intended to include associations such as Respondent in the definition of ‘planned community’ in A.R.S. § 33-1802(4), it could have used the term ‘right-of-way’ or ‘Complete Streets’.”

The ALJ highlighted that several documents submitted by the Petitioner actually undermined his argument by explicitly distinguishing between “roadway” and “right-of-way.”

• Pima County Code 10.56.020: This ordinance defines minor projects to include “[c]hanges or improvements to the right-of-way area outside the shoulder of an existing roadway.”

• Pima County RDM: The design manual specified different drawing scales for “Roadway Plans” (1” = 40’) and “Landscape Plans” (1” = 20’).

• Pima County RDM Statement: Another document stated that the “[i]nstallation of landscaping shall begin not later than six months after the formal completion date of the roadway project.”

These examples demonstrated that, even within the Petitioner’s own evidence, “roadway” and “landscaping” within the “right-of-way” are treated as distinct elements.

Final Order and Implications

Based on the analysis, the ALJ reached a definitive conclusion on the jurisdictional question.

• Finding: The association’s maintenance of the area around the entrance walls and sign does not render it a “planned community” because this activity is not maintenance of “roadways” as understood by the statute’s plain meaning.

• Order: The petition was dismissed with prejudice on September 25, 2018.

• Legal Consequence: The Office of Administrative Hearings and the Arizona Department of Real Estate lack subject matter jurisdiction over the petition.

• Further Recourse: The decision explicitly states that the Petitioner remains free to file an action in a court of competent jurisdiction as specified by the Respondent’s community documents.

Study Guide: Satterlee v. Green Valley Country Club Vistas II Property Owner’s Association

This guide reviews the administrative law case Thomas P. Satterlee v. Green Valley Country Club Vistas II Property Owner’s Association (No. 18F-H1817022-REL-RHG). The central issue is whether the Respondent association qualifies as a “planned community” under Arizona law, which would grant jurisdiction to the Arizona Department of Real Estate and the Office of Administrative Hearings. The case hinges on the statutory definition of “roadway” and whether the association’s maintenance of landscaping falls under a “covenant to maintain roadways.”

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Short-Answer Quiz

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

1. What was the Respondent’s primary argument for filing a Motion to Dismiss?

2. How did the Petitioner, Thomas P. Satterlee, initially argue that the Respondent qualified as a “planned community”?

3. What was the key piece of evidence presented by the Petitioner from the Pima County Director of Transportation during the rehearing?

4. What is the “Complete Streets” concept, and how did the Petitioner attempt to use it in his argument?

5. According to the Respondent, how did the Arizona legislature’s choice of words in the 2014 statutory amendment undermine the Petitioner’s argument?

6. How did the Administrative Law Judge use dictionary definitions to analyze the term “roadway”?

7. What piece of Pima County code did the judge cite to show that “roadway” and “right-of-way” are distinct terms?

8. Why did the Administrative Law Judge ultimately find the “Complete Streets” argument to be irrelevant to the case?

9. What is the legal principle regarding subject matter jurisdiction as stated in the Conclusions of Law?

10. What was the final order in this case, and what option did it leave available to the Petitioner?

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Answer Key

1. The Respondent argued that the Office of Administrative Hearings lacked subject matter jurisdiction over the petition. This was because the Respondent was not a “planned community” as defined by A.R.S. § 33-1802(4), since it did not own real estate or have a covenant to maintain roadways.

2. The Petitioner initially argued that the Respondent had a “covenant to maintain roadways” because the developer built walls and a sign at the community entrance, and the Respondent had maintained the landscaping around the sign. He contended that the term “roadway” in the statute included “roadway systems,” which would encompass the landscaped entrance land.

3. During the rehearing, the Petitioner presented a letter from Ana M. Olivares, PE, Director of Pima County Transportation. The letter stated that the Respondent had been maintaining the landscaping at the corners of La Canada Drive and La Canoa since its installation and would continue to do so until the county found funds to take over maintenance.

4. The “Complete Streets” concept is an approach to designing roadways and rights-of-way to be safe and accessible for all users, including pedestrians, bicyclists, and motorists. The Petitioner argued that this modern engineering approach effectively equates the term “roadway” with the entire “right-of-way,” which would include the landscaped areas maintained by the Respondent.

5. The Respondent argued that the “Complete Streets” concept was well-known by 2014 when the statute was amended. However, the Arizona legislature specifically chose to use the term “roadway,” not “right-of-way” or “Complete Streets,” implying a narrower, more specific meaning was intended.

6. The Administrative Law Judge consulted multiple dictionaries (English Oxford, Merriam-Webster, Dictionary.com, etc.) to establish the plain meaning of “roadway.” These definitions consistently described a “roadway” as the part of a road intended for vehicle travel, distinct from adjacent areas like sidewalks or landscaping.

7. The judge cited Pima County Code of Ordinances 10.56.020, which defined minor projects to include “[c]hanges or improvements to the right-of-way area outside the shoulder of an existing roadway.” This language explicitly treats the “right-of-way” and “roadway” as separate and distinct areas, contradicting the Petitioner’s claim.

8. The judge found the “Complete Streets” argument irrelevant because the statute in question was amended after the widespread adoption of the concept, yet the legislature chose to use the term “roadway.” The judge reasoned that if the legislature had intended to include the broader scope of a “right-of-way,” it would have used that specific term or referenced “Complete Streets.”

9. The Conclusions of Law state that a lack of subject matter jurisdiction cannot be waived by the parties and must be addressed. Administrative decisions that go beyond an agency’s statutory power are considered void, as jurisdiction is defined by statutes, not by the parties involved.

10. The final order was that the Petitioner’s petition be dismissed with prejudice because the Office of Administrative Hearings lacked subject matter jurisdiction. The Petitioner remained free to file an action in a court of competent jurisdiction as specified by the Respondent’s community documents.

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Essay Questions

Answer the following questions in a detailed essay format. No answers are provided.

1. Analyze the Petitioner’s legal strategy, focusing on the evolution of his arguments from the initial hearing to the rehearing. Discuss the strengths and weaknesses of using the “Complete Streets” concept as the central pillar of his case for establishing jurisdiction.

2. Examine the Administrative Law Judge’s method of statutory interpretation in this case. How did the judge apply the principles of “plain meaning” and legislative intent when analyzing the definition of “planned community” in A.R.S. § 33-1802(4)?

3. Discuss the legal and practical distinction between “roadway” and “right-of-way” as presented in the case documents. Explain how this distinction was pivotal to the judge’s final decision on subject matter jurisdiction.

4. Evaluate the significance of the 2014 amendment to A.R.S. § 33-1802(4). How did this change in statutory language, which added “easement to maintain roadways or a covenant to maintain roadways,” create the central point of contention in this dispute?

5. Based on the judge’s Conclusions of Law, explain the legal concept of subject matter jurisdiction and why it cannot be waived or conferred by the parties involved. How does this principle protect the integrity of the administrative and judicial process?

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders, such as the dismissal of a petition.

A.R.S. § 33-1802(4)

The Arizona Revised Statute that defines a “planned community.” The statute specifies that a planned community includes real estate development where a nonprofit association owns/operates real estate or holds an easement or covenant to maintain roadways for the purpose of managing, maintaining, or improving the property.

Complete Streets

An approach to planning, designing, and operating roadways and rights-of-way with all users in mind (pedestrians, bicyclists, motorists, etc.) to make the transportation network safer and more efficient. The concept includes elements like sidewalks, bike lanes, and transit stops.

Covenant

A formal agreement or promise. In this case, a “covenant to maintain roadways” is a condition that, if met by a homeowner’s association, could classify it as a “planned community” under Arizona law.

Jurisdiction

The official power to make legal decisions and judgments. In this case, the central issue was whether the Office of Administrative Hearings had jurisdiction over the dispute.

Petitioner

The party who brings a petition or action before a court or administrative body. In this case, the Petitioner is Thomas P. Satterlee.

Planned Community

As defined by A.R.S. § 33-1802(4), a real estate development with real estate owned/operated by, or having an easement/covenant to maintain roadways held by, an association of owners who are mandatory members and pay assessments.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Respondent is Green Valley Country Club Vistas II Property Owner’s Association.

Right-of-Way

The strip of land over which a public road is built. As shown in Pima County policy diagrams, this can include travel lanes, medians, shoulders, bike lanes, sidewalks, and landscaping areas. The court found this to be a broader term than “roadway.”

Roadway

Based on multiple dictionary definitions cited by the judge, the part of a road intended for vehicles, in contrast to the pavement, verge, or sidewalk. The judge concluded its “plain meaning” is the portion of a road upon which vehicles travel.

Subject Matter Jurisdiction

The authority of a court or administrative body to hear cases of a particular type or cases relating to a specific subject matter. The decision states this type of jurisdiction cannot be waived and is determined by statute, not the parties.

don't play in the street

Case Participants

Petitioner Side

Thomas P. Satterlee (petitioner)

Respondent Side

James A. Robles (attorney)
Perry, Childers, Hanlon & Hudson, PLC

Neutral Parties

Tammy L. Eigenheer (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Felicia Del sol (staff)
Clerk/Distribution staff

Other Participants

Ana M. Olivares (Director)
Pima County Transportation
Provided documentation/letter regarding landscaping maintenance

Travis Prall v. Villas at Tierra Buena HOA

Posted on September 25, 2018 by [email protected]

Case Summary

Case ID	18F-H1818053-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-01-31
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Travis Prall	Counsel	—
Respondent	Villas at Tierra Buena Homeowners Association	Counsel	Lydia Pierce Linsmeier

Alleged Violations

Section 7.1.4 of the CC&Rs

Outcome Summary

The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.

Key Issues & Findings

Neglecting yard maintenance in visible public yards

Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.

Orders: The Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 41-2198.01
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping

Additional Citations:

A.R.S. § 41-2198.01
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. § 41-1092.09
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

18F-H1818053-REL Decision – 686236.pdf

Uploaded 2026-04-26T09:46:58 (116.2 KB)

18F-H1818053-REL Decision – 661820.pdf

Uploaded 2026-04-26T09:47:00 (107.3 KB)

18F-H1818053-REL Decision – 686236.pdf

Uploaded 2026-04-24T11:14:18 (116.2 KB)

18F-H1818053-REL Decision – 661820.pdf

Uploaded 2026-04-24T11:14:22 (107.3 KB)

Briefing: Prall v. Villas at Tierra Buena HOA Dispute

Executive Summary

This briefing synthesizes the findings and legal rationale from a homeowners’ association dispute between Petitioner Travis Prall and Respondent Villas at Tierra Buena HOA. The case centered on whether the HOA was responsible for maintaining a tree in the Petitioner’s backyard. The Petitioner alleged the HOA violated Section 7.1.4 of the community’s Covenants, Conditions, and Restrictions (CC&Rs) by neglecting maintenance in what he defined as a “Public Yard.”

The dispute was adjudicated by the Arizona Office of Administrative Hearings, resulting in two decisions, an initial ruling and a subsequent ruling on rehearing, both of which dismissed the Petitioner’s case. The critical takeaway is that the case was decided not on the ambiguous definition of “Public” versus “Private” yards, but on a crucial qualifying clause in the CC&Rs. Section 7.1.4 obligates the HOA to maintain landscaping only “as originally installed by Declarant.”

The Petitioner failed to provide sufficient evidence that the tree in question was part of the original developer’s landscaping. Conversely, the HOA presented credible testimony from an early homeowner and board member stating that all backyards in the community were sold as “just dirt,” with no developer-installed landscaping or irrigation. The Administrative Law Judge ruled that the Petitioner’s arguments were based on “suppositions and inferences” and did not meet the “preponderance of the evidence” standard required to prove his claim.

Case Overview

This dispute was initiated by a petition filed with the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings. The core issue was the interpretation of HOA maintenance responsibilities as defined in the community’s governing documents.

Case Detail

Information

Case Number

18F-H1818053-REL

Petitioner

Travis Prall

Respondent

Villas at Tierra Buena HOA

Adjudicator

Administrative Law Judge Tammy L. Eigenheer

Initial Hearing

September 4, 2018

Initial Decision

September 24, 2018 (Petition Dismissed)

Rehearing

January 11, 2019

Final Decision

January 31, 2019 (Petition Dismissed)

Timeline of Key Events

• 2010: Petitioner Travis Prall purchases his home, an “interior” unit, and believes the HOA is responsible for both front and backyard maintenance.

• July 26, 2014: A storm knocks over a large tree in the Petitioner’s backyard. He pays for its removal while asserting it was the HOA’s responsibility.

• Post-2014: The tree regrows from its remaining trunk.

• 2018: The HOA observes that the regrown tree’s roots are causing a “pony wall” to buckle and hires Sun King Fencing & Gates to perform repairs. The repair company recommends removing the tree to prevent recurrence.

• May 3, 2018: The HOA issues a “Courtesy Letter” to the Petitioner, requesting he “trim or remove the tree in the back yard causing damage to the pony wall.”

• June 4, 2018: In response, the Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate, initiating the legal proceedings.

Central Allegation and Dispute

The Petitioner alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of its CC&Rs by “neglecting yard maintenance in visible public yards.” His central claim was that his backyard, though enclosed, qualifies as a “Public Yard” under the CC&Rs and that the HOA was therefore responsible for the maintenance and removal of the problematic tree. The HOA’s demand that he handle the tree himself constituted, in his view, a violation of their duties.

Analysis of Arguments and Evidence

The case presented conflicting interpretations of the CC&Rs and opposing accounts of historical maintenance practices.

Petitioner’s Position (Travis Prall)

The Petitioner’s case was built on his interpretation of the CC&Rs and inferences drawn from circumstantial evidence.

• CC&R Interpretation: Argued that his backyard is a “Public Yard” because, while enclosed by a four-foot wall (two-foot block plus two-foot aluminum fence), it is “generally visible from Neighboring Property” via a community walkway.

• Claim of Prior Maintenance: Testified that from 2010 to 2013, the HOA did provide landscaping maintenance for his backyard.

• Inferences about Original Landscaping:

◦ Posited that the large size of the tree in 2010 indicated it must have been planted by the original developer around 2000.

◦ Argued that the similar design of irrigation systems across the community suggested they were all installed during original construction, including those in backyards.

◦ Noted that the sprinkler system in his backyard wrapped around the tree, further suggesting they were installed together by the developer.

Respondent’s Position (Villas at Tierra Buena HOA)

The Respondent’s defense relied on its own interpretation of the CC&Rs, consistent historical practice, and direct testimony regarding the community’s development.

• CC&R Interpretation: Argued that an “enclosed” yard is, by definition, a “Private Yard,” making the homeowner responsible for its maintenance.

• Denial of Prior Maintenance: Stated unequivocally that it had never provided landscaping services for any resident’s backyard. Its responsibility is limited to front yards and common areas.

• Practical and Liability Concerns: Argued that it has no access to control backyard irrigation systems and that its workers entering enclosed yards would create liability issues, such as pets escaping.

• Crucial Rehearing Testimony: Presented testimony from Maureen Karpinski, the HOA Board President.

◦ Ms. Karpinski, a real estate agent, purchased her home from the developer in 2002 and was involved with the community during its construction phase.

◦ She testified with certainty that her backyard was “just dirt” with no landscaping or irrigation when she purchased it.

◦ She stated that, to the best of her knowledge, “none of the homes in Respondent’s community were sold with any landscaping or irrigation in the back yards and were just dirt.”

Interpretation of Governing CC&R Sections

The dispute revolved around the specific language in the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Provision

Significance in the Case

The HOA must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…“

This became the dispositive clause. The Petitioner’s entire claim depended on proving the tree was “originally installed by Declarant.”

“Private Yard” means that portion of a Yard which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property. “Public Yard” means that portion of a Yard which is generally visible from Neighboring Property…

This created a central point of interpretive conflict. The Petitioner argued the clause meant “enclosed and not visible,” while the HOA argued it meant “enclosed or shielded.” The Judge ultimately did not rule on this ambiguity.

“Visible from Neighboring Property” means… visible to a person six feet tall standing on any part of such neighboring property…

This definition supported the Petitioner’s claim that his backyard was, in fact, “visible” from the common area walkway.

Administrative Law Judge’s Rulings and Rationale

The Administrative Law Judge (ALJ) dismissed the Petitioner’s case in both the initial hearing and the rehearing, focusing on the burden of proof related to a single, critical phrase in the CC&Rs.

Initial Decision (September 24, 2018)

• Avoidance of Ambiguity: The ALJ acknowledged the potential merit of the Petitioner’s interpretation of “Public Yard,” stating “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes.” However, the ALJ concluded the tribunal was “not required to reach that issue in this matter.”

• Focus on “Originally Installed by Declarant”: The decision hinged entirely on Section 7.1.4. The ALJ found that the “Petitioner failed to present any evidence that the tree at issue was originally installed by the Declarant.”

• Lack of Proof: The ALJ noted that the tree’s rapid regrowth from 2013 to 2018 made it impossible to conclude that the original tree must have been planted by the developer in 2000.

• Conclusion: The Petitioner failed to meet the “preponderance of the evidence” burden of proof, and the petition was dismissed.

Rehearing Decision (January 31, 2019)

• Rejection of Petitioner’s Inferences: The ALJ characterized the Petitioner’s evidence regarding the tree’s age and the irrigation system as “suppositions and inferences.”

• Credibility of Respondent’s Testimony: In contrast, the ALJ found the testimony of HOA President Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.”

• Definitive Factual Finding: Based on Ms. Karpinski’s testimony, the ALJ concluded there was “no evidence there was any landscaping or improvements originally installed by Declarant.”

• Final Conclusion: As the precondition of Section 7.1.4 (that landscaping be “originally installed by Declarant”) was not met, the HOA had no maintenance duty for the Petitioner’s backyard. The Petitioner again failed to establish his case by a preponderance of the evidence, and the petition was dismissed with finality.

Study Guide: Prall v. Villas at Tierra Buena HOA

Short Answer Quiz

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

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

2. What specific section of the governing documents did the Petitioner allege was violated, and what was the central claim of his petition?

3. Describe the key physical differences between the “interior homes” and “exterior homes” within the Villas at Tierra Buena community as detailed in the hearing.

4. What incident in 2018 prompted the HOA to issue a “Courtesy Letter” to the Petitioner, and what action did the letter request?

5. Explain the two conflicting interpretations of the term “Private Yard” as argued by the Petitioner and the Respondent.

6. What was the Petitioner’s claim regarding the HOA’s past maintenance practices in his backyard, and how did the Respondent counter this assertion?

7. What is the legal standard of proof the Petitioner was required to meet, and how is this standard defined in the legal decision?

8. According to the Administrative Law Judge’s decisions, what was the single most critical point the Petitioner failed to prove, which ultimately led to the dismissal of his case?

9. During the rehearing, what crucial testimony was provided by the HOA’s witness, Maureen Karpinski, and why was it deemed the “only credible evidence” on the matter?

10. What was the final outcome of both the initial hearing on September 4, 2018, and the subsequent rehearing on January 11, 2019?

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Answer Key

1. Who were the primary parties in this legal dispute, and what were their respective roles? The Petitioner was Travis Prall, the homeowner who filed the dispute. The Respondent was the Villas at Tierra Buena Homeowners Association (HOA), which was defending against the Petitioner’s claims. The case was heard by Administrative Law Judge Tammy L. Eigenheer.

2. What specific section of the governing documents did the Petitioner allege was violated, and what was the central claim of his petition? The Petitioner alleged a violation of Section 7.1.4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). His central claim was that the HOA violated this section by neglecting its duty to perform yard maintenance in his backyard, which he argued was a “visible public yard.”

3. Describe the key physical differences between the “interior homes” and “exterior homes” within the Villas at Tierra Buena community as detailed in the hearing. The exterior homes feature six to seven-foot-tall block wall fences enclosing their backyards. In contrast, the interior homes, including the Petitioner’s, have a shorter back wall consisting of a two-foot block wall topped with a two-foot aluminum fence, making the total height approximately four feet and more visible from a common walkway.

4. What incident in 2018 prompted the HOA to issue a “Courtesy Letter” to the Petitioner, and what action did the letter request? In 2018, the HOA had a “pony wall” in the Petitioner’s backyard repaired and was informed by the repair company, Sun King Fencing & Gates, that the wall had buckled due to tree roots. Consequently, the HOA issued a Courtesy Letter on May 3, 2018, requesting that the Petitioner “trim or remove the tree in the back yard causing damage to the pony wall.”

5. Explain the two conflicting interpretations of the term “Private Yard” as argued by the Petitioner and the Respondent. The Respondent argued that a yard is considered a “Private Yard” if it is enclosed or shielded from view, meaning any enclosed yard qualified. The Petitioner argued that the definition should be read to mean a yard is private only if it is enclosed so that it is not generally visible from neighboring property, implying visibility was the key factor.

6. What was the Petitioner’s claim regarding the HOA’s past maintenance practices in his backyard, and how did the Respondent counter this assertion? The Petitioner testified that from 2010 to 2013, the HOA had provided landscaping maintenance for his backyard. The Respondent denied this claim, stating that it had never provided any landscaping maintenance to any backyards in the community and raised liability concerns about entering residents’ enclosed yards.

7. What is the legal standard of proof the Petitioner was required to meet, and how is this standard defined in the legal decision? The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence.” This standard is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” representing the greater weight of evidence.

8. According to the Administrative Law Judge’s decisions, what was the single most critical point the Petitioner failed to prove, which ultimately led to the dismissal of his case? The judge ruled that the Petitioner failed to present evidence proving that the tree in his backyard was “originally installed by the Declarant” (the developer). According to Section 7.1.4 of the CC&Rs, the HOA’s maintenance responsibility only applied to landscaping and improvements installed by the original community developer.

9. During the rehearing, what crucial testimony was provided by the HOA’s witness, Maureen Karpinski, and why was it deemed the “only credible evidence” on the matter? Maureen Karpinski testified that none of the homes in the community were sold with any landscaping or irrigation in the backyards and that they were “just dirt” at the time of purchase. Her testimony was considered credible because she was a real estate agent involved in the initial sales, had walked the community with many buyers during construction, and was herself an original buyer.

10. What was the final outcome of both the initial hearing on September 4, 2018, and the subsequent rehearing on January 11, 2019? In both the initial decision issued on September 24, 2018, and the final decision issued after the rehearing on January 31, 2019, the Petitioner’s petition was dismissed. The judge concluded in both instances that the Petitioner had failed to establish by a preponderance of the evidence that the HOA had violated the CC&Rs.

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Essay Questions

Instructions: The following questions are designed for longer, essay-style answers. Do not provide answers.

1. Analyze the competing interpretations of “Public Yard” versus “Private Yard” as defined in Section 1.38 of the CC&Rs. Explain why the Administrative Law Judge ultimately found it unnecessary to rule on this specific issue to reach a decision.

2. Discuss the concept of “burden of proof” as it applied in this case. How did the “preponderance of the evidence” standard shape the proceedings, and what specific types of evidence (or lack thereof) were most influential in the judge’s final decision?

3. Trace the timeline of the dispute over the tree in Travis Prall’s backyard, from the 2014 storm to the final legal decision in 2019. How did each key event contribute to the escalation of the conflict and the arguments presented at the hearings?

4. Compare the evidence presented by Travis Prall with the evidence presented by the Villas at Tierra Buena HOA at the rehearing. Why did the judge characterize Prall’s evidence as “suppositions and inferences” while deeming the HOA’s evidence “credible”?

5. Section 7.1.4 of the CC&Rs contains the phrase “as originally installed by Declarant.” Explain the critical importance of this phrase to the outcome of the case and how it became the dispositive legal issue, overshadowing all other arguments.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, weighs evidence, and makes legal decisions, in this case, Tammy L. Eigenheer.

Arizona Department of Real Estate (Department)

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

Burden of Proof

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

An acronym for Declaration of Covenants, Conditions, Restrictions and Easements, which are the governing legal documents for a planned community.

Common Area

Areas within the community maintained by the HOA for the benefit of all residents. The HOA provides landscaping for these areas.

Courtesy Letter

A formal notice sent by the HOA to a homeowner regarding a potential violation or required action. In this case, it requested the removal of a tree causing damage.

Declarant

The original developer of the planned community who installed the initial infrastructure and landscaping.

HOA Dispute Process Petition

The formal document filed with the Arizona Department of Real Estate by a homeowner to initiate a legal hearing regarding an alleged violation by their HOA.

Improvements

A term used in the CC&Rs referring to any additions to a lot other than the main residential dwelling, including landscaping.

Petitioner

The party who initiates a legal action or files a petition. In this case, the homeowner Travis Prall.

Pony Wall

A term used to describe the short, two-foot-tall block wall in the backyards of the interior homes, which was buckling due to tree roots.

Preponderance of the Evidence

The standard of proof required in this case, defined as evidence that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other,” making a contention “more probably true than not.”

Private Yard

As defined in the CC&Rs, a portion of a yard “which is enclosed or shielded from view… so that it is not generally Visible from Neighboring Property.” The interpretation of this definition was a point of contention.

Public Yard

As defined in the CC&Rs, the portion of a yard “which is generally visible from Neighboring Property,” regardless of its location on the lot. The HOA is responsible for maintaining landscaping originally installed by the Declarant in Public Yards.

Respondent

The party against whom a petition is filed; the party that must respond to the claims. In this case, the Villas at Tierra Buena HOA.

Visible from Neighboring Property

A term defined in the CC&Rs to mean an object that would be visible to a six-foot-tall person standing on a neighboring property. It includes a specific exception for objects visible only through a wrought iron fence.

As defined in the CC&Rs, “the portion of the Lot devoted to Improvements other than the Residential Dwelling.”

⚖️

18F-H1818053-REL-RHG

2 sources

These documents are two Administrative Law Judge Decisions from the Arizona Office of Administrative Hearings concerning a dispute between Travis Prall, the Petitioner, and the Villas at Tierra Buena HOA, the Respondent. The first document outlines the initial decision, dated September 24, 2018, which dismissed Mr. Prall’s petition arguing the HOA violated their Declaration of Covenants, Conditions, Restrictions, and Easements (CC&Rs) by neglecting yard maintenance. The second document is the decision following a rehearing requested by the Petitioner, dated January 31, 2019, which reaffirmed the initial dismissal, concluding that Mr. Prall failed to prove that the landscaping in question was originally installed by the Declarant, a prerequisite for the HOA’s maintenance responsibility under the CC&Rs. Both decisions rely heavily on interpreting sections of the CC&Rs, particularly the definitions of “Public Yard” versus “Private Yard,” to determine the HOA’s obligation. Ultimately, both rulings found that the Petitioner did not meet his burden of proof by a preponderance of the evidence.

Case Participants

Petitioner Side

Travis Prall (petitioner)
Appeared on his own behalf

Respondent Side

Lydia Pierce Linsmeier (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen LLP
Represented Villas at Tierra Buena HOA
Nicole Payne (HOA attorney)
Carpenter, Hazlewood, Delgado & Bolen LLP
Represented Villas at Tierra Buena HOA
Maureen Karpinski (board member)
Villas at Tierra Buena HOA
President of the Board; testified
Frank Peake (property manager)
Pride Community Management
Owner of Pride Community Management; testified
Rebecca Stowers (community manager)
Community Manager; testified at initial hearing

Neutral Parties

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

Jay A. Janicek vs. Sycamore Vista NO. 8 Homeowners Association

Posted on September 25, 2018 by [email protected]

Case Summary

Case ID	19F-H1918001-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-03-25
Administrative Law Judge	Jenna Clark
Outcome	total
Filing Fees Refunded	$500.00
Civil Penalties	$250.00

Parties & Counsel

Petitioner	Jay A. Janicek	Counsel	Jake Kubert
Respondent	Sycamore Vista No. 8 Homeowners Association	Counsel	Evan Thompson

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1

Outcome Summary

The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.

The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.

Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

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

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 33-1804(B)
Association Bylaws Article III

Analytics Highlights

Topics: HOA Governance, Bylaws Amendment, Open Meeting Law, ARS 33-1804, Membership Vote, Filing Fee Refund

Additional Citations:

ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. REV. STAT. § 32-2199.05
Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

19F-H1918001-REL Decision – 696205.pdf

Uploaded 2026-04-26T09:47:21 (169.8 KB)

19F-H1918001-REL Decision – 661797.pdf

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19F-H1918001-REL Decision – 696205.pdf

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19F-H1918001-REL Decision – 661797.pdf

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19F-H1918001-REL Decision – 661797.pdf

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19F-H1918001-REL Decision – 696205.pdf

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Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Jay A. Janicek v. Sycamore Vista No. 8 Homeowners Association (No. 19F-H1918001-REL-RHG). The central issue was the validity of a bylaw amendment enacted by the Association’s Board of Directors on November 20, 2017, without a vote of the general homeowner membership.

The ALJ ruled decisively in favor of the Petitioner, Jay Janicek, finding that the Board’s action was invalid. The decision hinged on a critical interpretation of the Association’s governing documents, concluding that the term “members” in the context of bylaw amendments unambiguously refers to the homeowner membership, not the Board of Directors. The ruling established that the Board does not have the authority to amend bylaws where that power is reserved for the membership.

Furthermore, the ALJ concluded that the Board’s action violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by failing to provide the required notice to homeowners for a meeting concerning a proposed bylaw amendment. As a result, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

Case Background and Procedural History

Parties and Jurisdiction

• Petitioner: Jay A. Janicek, a property owner within the Sycamore Vista subdivision and a member of the Respondent Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”), a homeowners’ association in Tucson, Arizona, governed by its Covenants, Conditions, and Restrictions (CC&Rs) and overseen by a Board of Directors.

• Adjudicating Body: The Arizona Office of Administrative Hearings (OAH), an independent state agency, which received the case on referral from the Arizona Department of Real Estate.

The Central Dispute

The core of the dispute was an action taken by the Association’s Board of Directors during a regular meeting on November 20, 2017. At this meeting, the Board, with three of five directors present, voted to approve a third amendment to the Association’s Bylaws. The amendment altered Article VIII Section 6(d), changing the requirement for an annual financial check from:

“cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year”

“cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”

The Petitioner contended this action was invalid because it was undertaken without a vote of the general Association membership, as he believed the governing documents required.

Timeline of Adjudication

1. July 25, 2018: Petitioner files a petition with the Arizona Department of Real Estate.

2. September 05, 2018: An initial evidentiary hearing is held before the OAH.

3. September 25, 2018: The OAH issues an ALJ Decision in the Petitioner’s favor.

4. October 23, 2018: The Respondent submits a Request for Rehearing.

5. November 07, 2018: The Department grants the rehearing request and refers the matter back to the OAH.

6. March 05, 2019: A rehearing is conducted, based on legal briefs and closing arguments without new evidence.

7. March 25, 2019: The final ALJ Decision is issued, reaffirming the initial ruling in favor of the Petitioner.

Analysis of Governing Documents and Statutes

The case decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state statutes.

Key Bylaw Provisions

Article

Section

Description

Article IV

Section 1

States that the “affairs of this Association shall be managed by a Board of not less than three (3) nor more than five (5) directors.”

Article VI

Section 1

Establishes that regular meetings of the Board of Directors shall be held monthly without notice.

Article VI

Section 2

Governs special meetings of the Board, requiring not less than three days’ notice to each Director.

Article VI

Section 3

Defines a quorum for Board meetings as “a majority of the number of Directors.”

Article VII

Section 1

Outlines the Powers and Duties of the Board of Directors. This section does not explicitly grant the Board the power to amend the Bylaws.

Article XIII

Section 1

(The central provision in the dispute) States: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.”

Relevant Arizona Statutes

• A.R.S. § 33-1804 (Open Meeting Law): This statute was central to the Petitioner’s argument and the ALJ’s final decision.

◦ Subsection (A): Requires that all meetings of the members’ association and the board of directors be open to all members of the association.

◦ Subsection (B): Mandates specific notice requirements for any meeting of the members, stating that notice “shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws.”

◦ Subsection (F): The ALJ noted that this section codifies the legislative intent of the statute, which, as cited from a Governor’s message, is to “promote transparency and participation for all residents in homeowners’ association governance.”

Arguments of the Parties

Petitioner’s Position (Jay Janicek)

The Petitioner’s case was built on a textual interpretation of the Bylaws and adherence to state law.

• Interpretation of “Members”: The Petitioner argued that the word “members” in Article XIII, Section 1 refers to the general homeowner membership of the Association, not the members of the Board of Directors.

• Textual Differentiation: The drafters of the Bylaws intentionally used the words “members” and “directors” distinctly throughout the document. Where the intent was to refer to the Board, the word “Director” was specifically used (e.g., Article VI).

• Proxy Voting: The inclusion of the term “proxy” in Article XIII supports the argument that the vote is for the general membership, as Board members are not permitted to vote by proxy.

• Lack of Explicit Power: Article VII, which details the Board’s powers, does not grant the authority to amend the Bylaws, implying such power is reserved for the membership.

• Statutory Violation: The Board’s action violated A.R.S. § 33-1804 because the required notice for a meeting concerning a bylaw amendment was not provided to the general membership.

• Legal Precedent: The Petitioner cited Powell v. Washburn, an Arizona Supreme Court case holding that restrictive covenants (which he argued include the Bylaws) should be interpreted to give effect to the intention of the parties as determined from the entire document.

Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that its actions were a valid exercise of the Board’s authority.

• Broad Authority: The Respondent cited Article IV, which states the “affairs of this Association shall be managed by a Board,” to assert its general authority.

• Valid Board Meeting: The amendment occurred at a regular monthly Board meeting as allowed by Article VI. The meeting had three directors present, which constituted a valid quorum for transacting business.

• Interpretation of Article XIII: The Respondent argued that the phrase “at a regular or special meeting of the Board of Directors” in Article XIII indicates that the Board is the body empowered to make the amendment, and the word “members” in that context refers to the members of the Board.

• No Open Meeting Law Violation: The Respondent contended its conduct was not a violation because the action occurred during a regular Board meeting with a proper quorum of directors.

Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions were unequivocal, fully adopting the Petitioner’s interpretation of the governing documents and state law.

Conclusions of Law

• Burden of Proof: The ALJ found that the Petitioner successfully sustained his burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804.

• Interpretation of “Members” vs. “Directors”: The decision states that the governing documents are clear: “‘members’ refers to the body of owners who make up the membership of the Association, and ‘directors’ refers to the few who are elected to the membership’s Board.” The ALJ found the differentiation to be intentional by the drafters.

• Avoiding Absurdity: The decision holds that construing the Bylaws to allow the Board to amend them would create an absurdity. The ALJ wrote, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

• Violation of Statute and Bylaws: The ALJ concluded that the Board’s action on November 20, 2017, violated both A.R.S. § 33-1804(B) due to a lack of notice and Article III of the Association Bylaws.

• Rejection of Respondent’s Argument: The decision explicitly states, “The Tribunal is not swayed by Respondent’s closing arguments.”

Final Order

Based on the findings and conclusions, the ALJ issued the following binding order:

1. Petition Granted: The Petitioner’s petition was officially granted.

2. Amendment Invalidated: The third amendment to the Association Bylaws, as enacted on November 20, 2017, was invalidated.

3. Fees and Penalties: The Respondent was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association

Short-Answer Quiz

1. Who were the primary parties in the case No. 19F-H1918001-REL-RHG, and what were their respective roles?

2. What specific action taken by the Respondent on November 20, 2017, prompted the Petitioner to file a complaint?

3. According to the Petitioner, what was the crucial difference in meaning between the terms “members” and “directors” as used in the Association’s Bylaws?

4. What was the Respondent’s central argument for why the Board of Directors had the authority to amend the Bylaws at its regular meeting?

5. What is Arizona’s Open Meeting Law, and how did the Petitioner argue that the Respondent violated it?

6. What was the financial concern that the Petitioner argued could potentially impact him as a homeowner due to the Board’s amendment?

7. Describe the procedural history of this case after the initial Administrative Law Judge (ALJ) Decision on September 25, 2018.

8. What case did the Petitioner cite regarding the interpretation of restrictive covenants, and what principle did it establish?

9. What is the legal standard of proof required in this proceeding, and how is it defined in the document?

10. What was the final outcome of the case, including the specific orders issued by the Administrative Law Judge?

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Answer Key

1. The primary parties were Jay A. Janicek, the Petitioner, and the Sycamore Vista No. 8 Homeowners Association, the Respondent. The Petitioner is a property owner and member of the Association who brought the legal action, while the Respondent is the homeowners’ association governed by a Board of Directors.

2. On November 20, 2017, the Respondent’s Board of Directors held a regular meeting where they voted to approve a third amendment to the Association’s Bylaws. This amendment changed the requirement for an “annual audit…by a public accountant” to an “annual audit, review, or compilation” of financial records.

3. The Petitioner argued that the term “members” in Article XIII of the Bylaws refers to the entire body of property owners in the Association, not the Board of Directors. He contended that if the drafter had intended to give amendment power to the Board, the specific word “directors” would have been used, as it was in other sections of the Bylaws.

4. The Respondent argued that its actions were proper because the Bylaws empower the Board to manage the Association’s affairs at regular monthly meetings. They contended that since a quorum of three directors was present at the November 20, 2017 meeting, the Board was empowered to transact business, which they interpreted to include amending the bylaws as described in Article XIII.

5. Arizona’s Open Meeting Law is ARIZ. REV. STAT. § 33-1804, which requires meetings of a homeowners’ association’s board and members to be open to all members. The Petitioner argued the Respondent violated this by amending a bylaw without proper notice to the full membership, which is required for any proposed bylaw amendment, thus undermining the law’s legislative intent of transparency.

6. The Petitioner was concerned that the amendment weakened the financial oversight of the Association. It modified a requirement for a third-party audit to a less stringent “review, or compilation,” creating a risk that the Association could perform its own financial checks, and as a homeowner, he had an interest in ensuring the Association’s financials were correct.

7. After the initial decision in the Petitioner’s favor on September 25, 2018, the Respondent submitted a Request for Rehearing on October 23, 2018. The Department of Real Estate granted this request on November 7, 2018, and the matter was referred back to the Office of Administrative Hearings for a rehearing, which ultimately took place on March 5, 2019.

8. The Petitioner cited Powell v. Washburn. This case established the principle that restrictive covenants should be interpreted to give effect to the intention of the parties, as determined from the language of the entire document and the purpose for which the covenants were created.

9. The legal standard of proof was a “preponderance of the evidence.” The document defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the most “convincing force” that inclines an impartial mind to one side of an issue.

10. The final outcome was a ruling in favor of the Petitioner. The ALJ granted the petition, invalidated the third amendment to the Bylaws that was passed on November 20, 2017, and ordered the Respondent to pay the Petitioner’s filing fee and a civil penalty of $250.00.

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Essay Questions

1. Analyze the Administrative Law Judge’s reasoning in differentiating between the terms “members” and “directors.” How did the principle of avoiding absurdity and considering the drafter’s intent, as seen throughout the Bylaws, contribute to the final decision?

2. Discuss the interplay between the Association’s governing documents (CC&Rs and Bylaws) and state law (ARIZ. REV. STAT. § 33-1804). Explain which authority took precedence in this case and why the Board’s actions were found to violate both.

3. Evaluate the legal strategy employed by the Petitioner, Jay A. Janicek. Consider his use of specific Bylaw articles, the citation of Powell v. Washburn, and his argument regarding the legislative intent of the Open Meeting Law.

4. Examine the arguments presented by the Respondent, Sycamore Vista No. 8 Homeowners Association. Why did the Judge find their interpretation of the Bylaws unconvincing, despite their claims that the Board was empowered to transact business with a quorum present?

5. Based on the text, discuss the broader implications of this ruling for homeowners’ associations in Arizona. How does this decision reinforce the principles of transparency and the limitations of a Board’s power relative to the association’s general membership?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Jenna Clark, who presides over administrative hearings at the Office of Administrative Hearings (OAH).

ARIZ. REV. STAT. § 33-1804

A section of the Arizona Revised Statutes, also known as Arizona’s Open Meeting Law, which mandates that meetings of an HOA’s members and board of directors must be open to all members and requires specific notice for meetings where bylaw amendments will be considered.

Bylaws

A set of rules that govern the internal operations of the homeowners’ association. In this case, key articles discussed include Article VI (Meeting of Directors), Article VII (Powers of the Board), and Article XIII (Amendments).

Covenants, Conditions, and Restrictions. These are governing documents that form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.

Member

As defined in the Association’s documents, a person entitled to membership by virtue of being a property owner within the Sycamore Vista subdivision. The Judge concluded this term refers to the body of owners, not the Board of Directors.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona, unaffiliated with the parties, responsible for conducting evidentiary hearings and making legal decisions in disputes like this one.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was Jay A. Janicek, a homeowner in the Association.

Preponderance of the evidence

The burden of proof in this case. It is defined as evidence that is more likely true than not and has the most convincing force, sufficient to incline a fair and impartial mind to one side of an issue.

The authority to represent someone else, especially in voting. The document notes that the term “proxy” applies to votes of the members, as members of the Board are not permitted to vote by proxy.

Quorum

The minimum number of members of a deliberative assembly necessary to conduct the business of that group. For the Respondent’s Board of Directors, a quorum is defined as a majority of the number of Directors.

Respondent

The party against whom a petition is filed. In this matter, the Respondent was the Sycamore Vista No. 8 Homeowners Association.

Restrictive Covenants

Legal obligations imposed in a deed to real property to do or not do something. The Petitioner argued this term included the CC&Rs, Bylaws, and rules of the Association.

Tribunal

A body established to settle certain types of dispute. In this document, it refers to the Administrative Law Judge at the Office of Administrative Hearings.

Select all sources

696205.pdf

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19F-H1918001-REL-RHG

1 source

The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Jay A. Janicek (Petitioner) and the Sycamore Vista No. 8 Homeowners Association (Respondent). The core issue of the case, designated No. 19F-H1918001-REL-RHG, revolves around whether the Homeowners Association violated its Bylaws and Arizona state statute (§ 33-1804) when its Board of Directors unilaterally amended the Bylaws on November 20, 2017. The Administrative Law Judge determined that the Board’s action was invalid because the power to amend the Bylaws was delegated to the Association’s general membership, not the Board of Directors, and the Board failed to provide the required notice for such an amendment. Consequently, the Petitioner’s request was granted, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty.

What central conflict drove the administrative hearing and subsequent rehearing process?

How did governing documents and Arizona statutes shape the final legal decision?

What ultimate implications does this ruling have for homeowners association governance and member rights?

Case Participants

Petitioner Side

Jay A. Janicek (petitioner)
Appeared on his own behalf at initial hearing; Observed rehearing
Jake Kubert (petitioner attorney)
Dessaules Law Group
Appeared at rehearing

Respondent Side

Evan Thompson (HOA attorney)
Thompson Krone, P.L.C.
Maxwell T. Riddiough (HOA attorney)
Thompson Krone, P.L.C.
Andrew F. Vizcarra (property manager)
Tucson Realty & Trust Co. Management
Recipient of correspondence for Respondent HOA

Neutral Parties

Jenna Clark (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate

Other Participants

Dennis Legere (observer)
Present at initial hearing
Becky Nutt (observer)
Present at initial hearing
Caleb Rhodes (observer)
Present at initial hearing

Patricia Davies-Brown vs. Starwood Estates Homeowners Association

Posted on September 14, 2018 by [email protected]

Case Summary

Case ID	18F-H1818039-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-09-14
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Patricia Davies-Brown, Individually and as Trustee of the Trust; BART A. BROWN, JR.; SCOTT R. DAVIES	Counsel	—
Respondent	Starwood Estates Homeowners Association	Counsel	Daniel Campbell & Kristopher L. Smith

Alleged Violations

CC&Rs; Bylaws; Architectural Guidelines

Outcome Summary

The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.

Why this result: Petitioners failed to establish by a preponderance of the evidence that Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Key Issues & Findings

Violation of Exterior Appearance and Colors provisions regarding copper-colored metal roof approval

Petitioners alleged that the HOA improperly approved a copper-colored metal roof because it constituted a reflective surface and did not blend with the natural surroundings, violating the community documents. The ALJ denied the petition, finding Petitioners failed to establish by a preponderance of the evidence that the HOA violated its documents, noting the reflective surfaces ban applied to windows and doors, not roofs, and the roof's appearance was acceptable.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

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)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: architectural control, CC&Rs enforcement, metal roof approval, reflective surfaces, 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)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Video Overview

Audio Overview

Decision Documents

18F-H1818039-REL Decision – 653217.pdf

Uploaded 2026-04-24T11:12:08 (41.6 KB)

18F-H1818039-REL Decision – 659968.pdf

Uploaded 2026-04-24T11:12:20 (104.6 KB)

18F-H1818039-REL Decision – 653217.pdf

Uploaded 2026-01-23T17:23:55 (41.6 KB)

18F-H1818039-REL Decision – 659968.pdf

Uploaded 2026-01-23T17:24:00 (104.6 KB)

Briefing Document: Davies-Brown v. Starwood Estates HOA

Executive Summary

This document summarizes the administrative hearing and decision in case No. 18F-H1818039-REL, concerning a dispute between homeowners Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies (the “Petitioners”) and the Starwood Estates Homeowners Association (the “Respondent”). The core of the dispute was the HOA Board of Directors’ 2013 approval of a copper-colored metal roof for homeowners Jeff and Karen Martin.

The Petitioners alleged this approval violated the community’s CC&Rs, Bylaws, and Architectural Guidelines. Their primary arguments were that the roof was an impermissible “reflective surface,” that it did not “blend with the natural surrounding and landscape,” and that the Board lacked the authority to approve it without prior review by the Architectural Committee (ACC) and without viewing a physical sample.

The Respondent defended the Board’s decision, arguing that the Board possessed the authority to grant such approvals. They contended the prohibition on reflective surfaces in the community guidelines applies specifically to windows and doors, not roofing. Furthermore, they asserted that the roof was aesthetically compliant and that other reflective metal roofs exist within the community.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Respondent. The decision, issued on September 14, 2018, denied the petition, concluding that the Petitioners failed to meet their burden of proof. The ALJ found that the Board had the authority to approve the roof, the ban on reflective surfaces did not apply to roofing, and the Petitioners did not establish that the roof failed to blend with its natural surroundings.

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Case Overview

• Case Name: Patricia Davies-Brown, et al. vs. Starwood Estates Homeowners Association

• Case Number: 18F-H1818039-REL

• Forum: Arizona Office of Administrative Hearings

• Presiding Judge: Velva Moses-Thompson, Administrative Law Judge

• Hearing Dates: July 10, 2018, and August 13, 2018

• Final Decision Date: September 14, 2018

Key Parties and Representatives

Name(s)

Representation / Contact

Petitioners

Patricia Davies-Brown, Bart A. Brown, Jr., Scott R. Davies

Appeared on behalf of themselves
9777 E Dreyfus Ave., Scottsdale, AZ 85260
[email protected]

Respondent

Starwood Estates Homeowners Association

Kristopher L. Smith, Esq.
O’Connor & Campbell, P.C.
7955 S Priest Dr., Tempe, AZ 85284
[email protected]

Homeowners

Jeff and Karen Martin

Owners of the property with the disputed roof at 8500 Skywood Drive, Pinetop, Arizona (Lot 40 of Starwood Estates).

Core Dispute: The Martin Residence Roof

The central conflict originated in the summer of 2013 when the Starwood Estates Board of Directors approved a request from Jeff and Karen Martin to install a copper-colored metal roof on their home. The approval was passed by a 5-1 vote. Petitioner Scott R. Davies was the sole board member who voted against the approval at that time.

The Board reviewed a brochure containing the roof’s color before granting approval but did not observe a physical sample. However, one Board member, Pat Knight, was reportedly familiar with the appearance of such roofs from a previous home she owned nearby. The petition challenging this 2013 decision was filed on or about March 26, 2018.

Petitioners’ Allegations and Arguments

The Petitioners filed their petition with the Arizona Department of Real Estate, alleging that the HOA violated community governing documents. Their case was built on three central questions:

1. Does the exterior appearance of the Martins’ aluminum copper-colored metal roof blend with the “natural surrounding and landscape” of Starwood Estates?

2. Does such roof constitute a “reflective surface”?

3. If the answer to (1) above is no and/or the answer to (2) above is yes, did the ACC and the Board of Starwood Estates erroneously violate the provisions of the CC&R’s and GUIDELINES in permitting the Martins to install such aluminum copper-colored metal roof…?

During the hearing, the Petitioners expanded on these points, arguing:

• Reflective Surface: The copper-colored roof was a prohibited reflective surface under the Architectural Guidelines.

• Aesthetic Incompatibility: The roof did not blend with the natural surroundings as required.

• Procedural Violations:

◦ The Board violated the CC&Rs by approving the roof without first viewing a physical sample of the material.

◦ The approval was invalid because it should have first been granted by the two-person Architectural Committee (ACC) appointed by the Board.

Respondent’s Defense and Arguments

The Starwood Estates HOA maintained that its approval of the Martin roof was proper and compliant with all governing documents. Their key arguments were:

• Board Authority: The HOA asserted that either the Board of Directors or the Architectural Committee had the authority to approve the roof.

• Interpretation of “Reflective Surfaces”: The Respondent argued that the prohibition on “reflective surfaces” within the Architectural Guidelines applies specifically to windows and doors, not to roofing, which is addressed in a separate section of the guidelines.

• Aesthetic Compliance: They contended the roof, while having a “shine,” was not a barred reflective surface and did blend in with the natural surroundings.

• Precedent: The HOA noted that several other metal roofs that are reflective had been previously approved in Starwood Estates. They submitted images of reflective green and red roofs in the Pinetop Country Club area as evidence.

Referenced Governing Documents

The decision cited specific sections from the HOA’s governing documents to adjudicate the dispute.

• Section 3.1.4: Requires prior written approval from the Architectural Committee for any work that alters the exterior appearance of a Lot.

• Section 5.2: States that approvals or actions to be taken by the Association “shall be valid if given or taken by the Board.”

• Article VII, Section A(2): Grants the Board authority to exercise all powers and duties vested in the Association unless reserved to the membership.

• Article VII, Section B: Empowers the Board to “Review and approve any architectural plan for the building of any improvements on any Lots.”

• Exterior Appearance and Colors: Mandates that exterior appearance “shall blend with the natural surroundings and landscape.” It also states, “Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.” A note requires the owner to submit samples of materials for ACC approval.

• Roofs, Materials, and Pitches: Stipulates that “Metal roofs are permitted only with ACC approval” and that all pitched roof materials “shall promote a continuity of texture and color.”

Evidence Presented

• Petitioner’s Exhibit 13: A photograph of the Martins’ copper-colored roof. The ALJ’s decision noted that while the image showed a reflection, the photograph itself was “blurred.”

• Respondent’s Exhibit 26: The brochure containing the color of the copper-colored roof that the Board reviewed before its 2013 approval.

• Respondent’s Exhibit 7: Images of other reflective green and red metal roofs located in the Pinetop Country Club area, which were previously approved.

• Testimony: Board member Pat Knight’s familiarity with the appearance of copper-colored roofs was noted.

Administrative Law Judge’s Decision and Rationale

The petition was denied. The ALJ found that the Petitioners failed to establish by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving their claims by a “preponderance of the evidence,” defined as evidence that is more probably true than not. They failed to meet this standard.

2. Board Authority: The ALJ concluded that the governing documents allowed for the roof to be approved by either the Architectural Committee or the Board of Directors. The Board’s action was therefore valid.

3. Interpretation of Reflective Surfaces: The evidence established that the prohibition on “reflective surfaces” in the Architectural Guidelines applies to windows and doors. Roofs are addressed in a separate section of the guidelines. The existence of other approved shiny metal roofs further supported this interpretation.

4. Aesthetic Compliance: The Petitioners did not provide sufficient evidence to prove that the copper-colored roof failed to blend in with the natural surroundings.

Final Order

IT IS ORDERED that Petitioners’ petition is denied because Petitioners have not established that Respondent violated the Community Bylaws, Community CC&Rs, and the Community Architectural Guidelines when Respondent approved the Martins’ request to install the copper-colored roof.

The order was made binding unless a rehearing was requested within 30 days of service.

Study Guide: Davies-Brown v. Starwood Estates HOA (Case No. 18F-H1818039-REL)

This guide provides a comprehensive review of the administrative hearing case between Patricia Davies-Brown, et al., and the Starwood Estates Homeowners Association. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the provided legal documents.

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Short-Answer Quiz

Answer the following questions in two to three sentences, drawing exclusively from the information presented in the case documents.

1. Who were the primary parties involved in Case No. 18F-H1818039-REL?

2. What specific architectural feature was the central point of the dispute?

3. What were the three main questions the Petitioners raised in their petition filed on March 26, 2018?

4. How did the Respondent (Starwood Estates HOA) justify the approval of other reflective metal roofs in the community?

5. According to the Petitioners, which two procedural errors did the Board of Directors commit when approving the Martins’ roof?

6. What was the Administrative Law Judge’s conclusion regarding the prohibition of “reflective surfaces” in the Architectural Guidelines?

7. What is the legal standard of proof the Petitioners were required to meet, and did they succeed?

8. Which governing documents grant the Board of Directors the authority to approve architectural plans?

9. When was the disputed roof originally approved by the Board, and what was the vote count?

10. What evidence did the Board review before its initial approval, and what evidence was not reviewed at that time?

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Answer Key

1. The Petitioners were Patricia Davies-Brown (Individually and as Trustee of the Trust), Bart A. Brown, Jr., and Scott R. Davies. The Respondent was the Starwood Estates Homeowners Association.

2. The central dispute was an aluminum, “copper-colored metal roof” installed by homeowners Jeff and Karen Martin on their property at Lot 40 of Starwood Estates. The Petitioners challenged the HOA Board’s approval of this roof.

3. The Petitioners’ petition questioned whether the roof blended with the “natural surrounding and landscape,” whether it constituted a “reflective surface,” and if so, whether the Board and ACC violated the CC&Rs and Guidelines by permitting it.

4. The Respondent submitted evidence of other reflective green and red metal roofs within the Pinetop Country Club area that had been previously approved by the Board. This was used to argue that roofs with a shine were not explicitly barred.

5. The Petitioners contended the Board violated the CC&Rs by approving the roof without first viewing a physical sample. They also argued that the roof required approval from the two-person Architectural Committee (ACC) and could not be approved by the Board alone.

6. The Judge concluded that the bar on reflective surfaces, as written in the Architectural Guidelines, applies specifically to windows and doors. Roofs are addressed in a separate section of the guidelines that does not contain the same prohibition.

7. The Petitioners bore the burden of proof to establish their case by a “preponderance of the evidence,” which means showing their contention is more probably true than not. The Judge ruled that they failed to meet this standard.

8. Section 5.2 of the CC&Rs states that actions taken by the Board are valid, and Article VII of the Starwood Bylaws grants the Board the power to exercise Association authority and to review and approve architectural plans. The Judge found this authority allowed the Board to approve the roof.

9. The roof was approved by the Board of Directors in the summer of 2013. The approval passed with a 5-1 vote, with Petitioner Scott R. Davies being the sole board member who voted against it.

10. Before approving the roof, the Board reviewed a brochure containing the color of the copper-colored roof. However, the Board did not observe a physical sample of the actual roofing material.

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Essay Questions for Further Study

The following questions are designed for deeper, analytical consideration of the case. Answers are not provided.

1. Analyze the conflict between CC&Rs Section 3.1.4 (requiring ACC approval) and other governing documents (like CC&Rs Section 5.2 and Bylaws Article VII) that grant broad authority to the Board. How did the Administrative Law Judge resolve this apparent contradiction in the final decision?

2. Discuss the concept of “burden of proof” as it applied in this case. Explain what “preponderance of the evidence” means and detail why the Petitioners failed to meet this standard with respect to their claims about the roof’s reflective nature and its harmony with the natural surroundings.

3. Examine the interpretation of the Architectural Guidelines regarding “reflective surfaces.” How did the Respondent and the Administrative Law Judge construe this rule, and what evidence and reasoning supported their interpretation over the Petitioners’ broader application?

4. Evaluate the evidence presented by both the Petitioners and the Respondent. Discuss the strengths and weaknesses of each party’s evidence (e.g., the blurred photograph vs. the brochure and photos of other roofs) and explain how this likely influenced the outcome of the case.

5. Based on the issues raised in this case, what specific changes or clarifications could be made to the community’s CC&Rs and Architectural Guidelines to prevent similar disputes in the future?

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Glossary of Key Terms

Definition in Context

ACC (Architectural Committee)

A committee, as referenced in the CC&Rs and Architectural Guidelines, responsible for approving exterior alterations and ensuring all building materials and colors conform to community standards.

Administrative Law Judge (ALJ)

The presiding official (Velva Moses-Thompson) at the Office of Administrative Hearings who conducts hearings, evaluates evidence, and issues a binding decision on the matter.

Architectural Guidelines

A set of community documents establishing goals and specific rules for exterior appearance, colors, materials, and site development to retain the character of Starwood Estates.

Board of Directors (Board)

The governing body of the Starwood Estates Homeowners Association, which is empowered by the CC&Rs and Bylaws to conduct the affairs of the Association and approve architectural plans.

Bylaws

The rules and regulations that govern the internal operations of the Starwood Estates Homeowners Association, including the powers and duties of the Board of Directors.

Covenants, Conditions, and Restrictions. Legally binding rules recorded with the property deeds in the Starwood Estates community that govern what homeowners may or may not do with their property.

Conclusions of Law

The section of the ALJ’s decision that applies legal principles, statutes, and case law to the established facts of the case to reach a final judgment.

Findings of Fact

The section of the ALJ’s decision that formally lists the factual determinations made by the judge based on the evidence presented at the hearing.

Petitioner

The party that initiates a legal action by filing a petition. In this case, Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies, who brought the complaint against the HOA.

Preponderance of the evidence

The standard of proof required in this administrative hearing. It is defined as evidence that is more convincing and has a greater weight than the evidence offered in opposition, persuading the fact-finder that a contention is more likely true than not.

Respondent

The party against whom a petition is filed. In this case, the Starwood Estates Homeowners Association, which had to defend its decision to approve the roof.

Restrictive Covenant

A provision in a deed or community document (like a CC&R) that limits the use of the property. In Arizona, if unambiguous, these are enforced to give effect to the intent of the parties.

This Copper Roof Caused a Legal Battle: 3 Surprising Lessons Every Homeowner Should Learn

Introduction: The Neighborhood Dispute That Went to Court

The relationship between homeowners and their Homeowners Association (HOA) can be a delicate balance. Architectural rules, designed to maintain a community’s aesthetic, often become a source of friction. But what happens when a disagreement over design choices escalates?

In the case of Davies-Brown v. Starwood Estates Homeowners Association, a dispute over Jeff and Karen Martin’s new copper-colored metal roof didn’t just cause whispers over the fence—it went all the way to a formal administrative hearing. When the HOA board approved the roof in a 5-1 vote, the lone dissenting board member, Scott R. Davies, joined two other homeowners to formally challenge the decision.

This seemingly simple disagreement over a roofing material reveals several powerful, and often counter-intuitive, lessons for anyone living in a planned community. From the structural placement of a single sentence to the evidentiary power of a blurry photograph, this case offers a masterclass in HOA law. Here are three surprising lessons every homeowner should learn.

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1. The Devil in the Document: How a Single Sentence Can Decide Everything

The first major lesson from this case is that the hyper-specific wording and structure of your community guidelines are paramount. The location and context of a rule can be just as important as the rule itself.

The petitioners’ core argument was that the copper-colored roof violated the Architectural Guidelines because it was a “reflective surface,” which they believed was forbidden. On the surface, this seems like a straightforward complaint.

However, the HOA mounted a successful counter-argument based on document structure. The Administrative Law Judge agreed with the HOA’s interpretation. The rules for roofs were addressed in a distinct section titled “Roofs, Materials, and Pitches.” The ban on “reflective surfaces,” meanwhile, was located in an entirely separate section, “Exterior Appearance and Colors,” which also contained rules for windows and doors. This seemingly minor structural detail was the deciding factor on this point.

The exact rule the petitioners cited, found in the “Exterior Appearance and Colors” section, illustrates the point perfectly:

Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.

Because this prohibition was not located in the roofing section, the judge concluded it applied only to windows, doors, and general exterior surfaces—not roofs. This case highlights that homeowners must read their community documents with extreme care. A prohibition you think is universal might, in fact, be limited to a very specific context by its placement in the text.

2. The Power of Precedent: What Your Neighbors Did Years Ago Matters Today

The second key takeaway is that an HOA board’s decisions can be heavily influenced by the character of the surrounding area, not just by what has been approved inside the development’s gates.

During the hearing, the HOA presented evidence of other reflective metal roofs, including green and red ones, that existed in the broader Pinetop Country Club area. Starwood Estates is part of this larger community, and the judge’s official findings noted this evidence, which significantly supported the HOA’s position to approve the Martins’ copper-colored roof.

This reveals a nuanced lesson: an HOA doesn’t exist in a vacuum. Once a certain style or material becomes common in the surrounding region, it can establish a de facto community standard. This makes it significantly more difficult for other homeowners to argue against a similar request, as the board can point to the broader neighborhood aesthetic to justify its decision. Before you challenge a project, it’s crucial to look not only at what has been approved within your HOA, but also at the character of the community at large.

3. The Burden of Proof: Your Complaint Is Only as Good as Your Evidence

The third critical lesson is that in any formal dispute, the quality of your evidence is non-negotiable. A subjective feeling or personal opinion holds little weight without objective proof.

The petitioners attempted to prove the roof was overly reflective by submitting a photograph as evidence. However, the judge’s official findings delivered a devastating blow, noting with precise and revealing language: “Although the image showed a reflective the image, the photograph was blurred.”

This detail underscores a vital point: in a legal or formal setting, a complaint must be backed by clear, objective proof. Weak or poor-quality evidence, like a blurred photo, can completely undermine an otherwise valid concern. Even though the image hinted at the issue, its poor quality rendered it useless. If you are going to make a claim, the burden is on you to prove it with convincing, high-quality evidence. Without it, your case is likely to be dismissed.

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Conclusion: Before You Build or Battle, Do Your Homework

The Starwood Estates case serves as a powerful reminder that navigating HOA rules requires diligence. From this single dispute over a copper roof, we learn to read the fine print—and the structure—of governing documents, understand the power of aesthetic standards in the broader community, and ensure any complaint is backed by strong, clear evidence.

The next time you plan a home project or question a neighbor’s, ask yourself: have you really done your homework on the rules, the history, and the facts?

Case Participants

Petitioner Side

Patricia Davies-Brown (petitioner)
Appeared on behalf of petitioners
Bart A. Brown, Jr. (petitioner)
Scott R. Davies (petitioner, board member)
Starwood Estates HOA Board
Voted against the roof approval

Respondent Side

Kristopher L. Smith (HOA attorney)
O'Connor & Campbell, P.C.
Appeared on behalf of Respondent
Daniel Campbell (HOA attorney)
O'Connor & Campbell, P.C.
Pat Knight (board member)
Starwood Estates HOA Board

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
L Dettorre (ADRE Staff)
Arizona Department of Real Estate
A Hansen (ADRE Staff)
Arizona Department of Real Estate
D Jones (ADRE Staff)
Arizona Department of Real Estate
D Gardner (ADRE Staff)
Arizona Department of Real Estate
N Cano (ADRE Staff)
Arizona Department of Real Estate
C Serrano (OAH Staff)
Office of Administrative Hearings
Transmitted the order

Other Participants

Jeff Martin (Starwood Estates resident)
Starwood Estates
Property owner whose roof was subject of the dispute
Karen Martin (Starwood Estates resident)
Starwood Estates
Property owner whose roof was subject of the dispute

Lawrence M. Stewart v. Canyon Gate Condominium Association, Inc.

Posted on September 14, 2018 by [email protected]

Case Summary

Case ID	18F-H1818052-REL
Agency	Arizona Department of Real Estate
Tribunal	—
Decision Date	9/14/2018
Administrative Law Judge	TS
Outcome	complete
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Lawrence M. Stewart	Counsel	Pro Se
Respondent	Canyon Gate Condominium Association, Inc.	Counsel	Mark K. Sahl, Esq., Nicolas C. S. Nogami, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

18F-H1818052-REL Decision – 683622.pdf

Uploaded 2026-04-24T11:13:55 (95.5 KB)

18F-H1818052-REL Decision – 694095.pdf

Uploaded 2026-04-24T11:13:58 (90.8 KB)

18F-H1818052-REL Decision – 660026.pdf

Uploaded 2026-04-24T11:14:03 (91.5 KB)

18F-H1818052-REL Decision – 720468.pdf

Uploaded 2026-04-24T11:14:06 (103.5 KB)

Administrative Decision Briefing: Stewart v. Canyon Gate Condominium Association, Inc.

This briefing document provides a comprehensive analysis of the legal proceedings and final administrative decisions regarding the dispute between Lawrence M. Stewart and the Canyon Gate Condominium Association, Inc. (Case No. 18F-H1818052-REL and 18F-H1818052-REL-RHG).

Executive Summary

The matter originated from a petition filed by Lawrence M. Stewart on May 21, 2018, alleging that the Canyon Gate Condominium Association, Inc. violated Association Bylaws, specifically Section 5.4, regarding the denial of a variance for unauthorized changes made to common or limited common areas.

Mr. Stewart, while serving as a Board member, modified areas around his unit without prior authorization. Upon being notified of a violation of Section 5.1 of the Covenants, Conditions, and Restrictions (CC&Rs), he sought a formal variance. The Board, consisting of two other members, denied this request on February 18, 2018, leading to Mr. Stewart's resignation and subsequent legal action.

Across two hearings—an initial hearing on September 6, 2018, and a rehearing on January 2, 2019—Administrative Law Judge Thomas Shedden consistently ruled in favor of the Association. The central legal finding was that Bylaw Section 5.4 serves as a "shield" against liability for Board members rather than a "sword" for petitioners to challenge Board decisions. Consequently, the petition was dismissed, and the Association was deemed the prevailing party.

Detailed Analysis of Key Themes

1. Interpretation of Bylaw Section 5.4 (Indemnification and Liability)

The crux of the Petitioner's argument rested on Section 5.4 of the Association Bylaws. Mr. Stewart used this section to assert a "good faith" requirement for Board decisions.

The Provision: Section 5.4 states that as long as a Board member acts in "good faith on the basis of information actually possessed," they shall not be liable for damages or loss related to the approval or disapproval of plans or any act/failure to act by the Association.
The Legal Conflict: The Association argued that Section 5.4 was inapplicable because no Board member had been charged with an act requiring indemnity.
The Ruling: The Administrative Law Judge (ALJ) determined that Section 5.4 does not impose a duty on the Board to act in a specific way toward owners; rather, it is a liability shield. Mr. Stewart eventually acknowledged that Section 5.4 acts as a "shield" and not a "sword," admitting he cited it only because he could find no other "good faith" reference in the governing documents.

2. Allegations of Bias and Lack of Good Faith

Mr. Stewart contended that the Board's decision was not made in good faith and that Board member David Larson was specifically biased against him.

Evidence of Bias: Stewart cited Mr. Larson’s biography, meeting notes from November 2017 regarding "Fair Notice" of enforcement (towing, violation notices), and a letter Larson wrote in October 2018 urging members not to vote for Stewart in an election.
Evidence of Bad Faith: Stewart testified that the Board members were unwilling to physically inspect his changes and only took a "cursory look" at his photographs.
The Ruling: The ALJ found the evidence insufficient to prove bias or bad faith by a preponderance of the evidence. Regarding the meeting notes, Larson’s refusal to discuss Board business in driveways or his intent to enforce CC&Rs did not constitute legal bias against Mr. Stewart’s specific variance request.

3. "Pandora's Box" and Reasonable Enforcement

A significant theme was the Board's rationale for denying the variance.

The Association's Defense: The Board denied the request on the basis that granting it would "open a Pandora’s Box," encouraging other owners to request similar variances for common areas.
Selective Enforcement Claims: Mr. Stewart argued he was treated unfairly, presenting photos of other units allegedly not in conformity with the CC&Rs.
The Ruling: The ALJ determined that the Board's fear of a "Pandora's Box" was a reasonable position for a condominium association. Furthermore, the specifics of Stewart’s changes were deemed not germane to the decision if the Board's policy was to prevent a precedent of common area modifications. The evidence of other non-conforming units was dismissed because there was no proof those owners had requested or been denied variances, nor was it known if they had received prior approval.

Important Quotes with Context

Quote	Context
"Mr. Stewart appeared to acknowledge that section 5.4 acts as a 'shield' and not a 'sword,' but he testified to the effect that that was the only section that included a 'good faith' requirement."	Findings of Fact, Para 21 (Initial Decision). This highlights the Petitioner's struggle to find a legal basis for his claim within the governing documents.
"The Board disapproved his changes because they were fearful of opening a Pandora’s Box of people requesting changes to the common area. This was not an unreasonable position for the Board of a condominium association."	Conclusions of Law, Para 7. The Judge validates the Association’s right to deny variances based on the risk of setting a precedent.
"A preponderance of the evidence is… evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue."	Conclusions of Law, Para 3. This defines the standard of proof Mr. Stewart failed to meet in his allegations of bias.
"Bylaws Section 5.4 does not impose any duty on the Board members, but rather shields them from liability if they have acted in good faith."	Conclusions of Law, Para 5 (Rehearing). This is the definitive legal interpretation that led to the dismissal of the petition.

Actionable Insights

For Homeowners and Board Members

Prior Authorization is Mandatory: Modifications to common or limited common areas must receive written approval before work begins. Attempting to secure a "variance" after the fact (as Mr. Stewart did) places the owner in a precarious legal position where the Board has broad discretion to deny the request to prevent setting a precedent.
Understanding Bylaw Limitations: General "good faith" clauses found in indemnification sections are typically intended to protect the Association and its officers from lawsuits; they do not necessarily provide a cause of action for an owner to overturn a Board's discretionary decision.
Evidence Standards in Administrative Hearings: To prove bias or "bad faith," a petitioner must provide specific, probative evidence that links the bias directly to the decision in question. General disagreements or a Board member’s rigorous enforcement of rules do not legally equate to bias.
Burden of Proof: In these administrative matters, the petitioner bears the burden of proof by a "preponderance of the evidence." If the evidence is equally balanced or insufficient to "incline a fair and impartial mind" to the petitioner's side, the case will be dismissed.

For Association Governance

Consistency in Rationale: The Board's use of a consistent rationale (preventing a "Pandora's Box") was viewed as reasonable by the court. Boards should document the policy-based reasons for denying variances to withstand legal scrutiny.
Recusal Protocols: While Mr. Stewart disputed whether he had agreed to recuse himself, the case underscores the importance of clear, documented recusal when a Board member has a personal interest in a matter before the Board.

Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.

This study guide provides a comprehensive overview of the administrative law cases between Lawrence M. Stewart (Petitioner) and the Canyon Gate Condominium Association, Inc. (Respondent). It explores the legal disputes regarding condominium governance, homeowners' association (HOA) board conduct, and the interpretation of association bylaws.

Case Overview and Entities

The conflict arose when Lawrence M. Stewart, a condominium owner and former board member, made unauthorized changes to the common or limited common areas surrounding his unit. The resulting legal proceedings focused on whether the Association Board acted in good faith and within its authority when it denied Mr. Stewart's request for a variance to keep those changes.

Key Entities and Figures

Entity/Figure	Role
Lawrence M. Stewart	Petitioner; unit owner and former Board member of Canyon Gate Condominium Association.
Canyon Gate Condominium Association, Inc.	Respondent; the homeowners' association governing the condominium complex.
Thomas Shedden	Administrative Law Judge (ALJ) who presided over the hearings and issued the decisions.
David Larson	Board member of the Association; accused of bias by Mr. Stewart.
Sandra Fernandez	Board member of the Association during the dispute.
Arizona Department of Real Estate	The state agency with authority over the matter under Ariz. Rev. Stat. Title 32.

Core Themes and Legal Principles

1. The Nature of Association Bylaws

Bylaws are legally viewed as a contract between the Association and the owners. Both parties are required to comply with the terms of this contract. When exercising authority under these bylaws, the Association must act reasonably.

2. The "Shield vs. Sword" Interpretation of Section 5.4

A central point of contention was Bylaws Article V, Section 5.4 (Liability).

The Provision: It states that Board members are not liable for damages or prejudice resulting from their acts (including approval or disapproval of plans) as long as they act in good faith based on information they possess.
The Interpretation: The court determined that Section 5.4 acts as a "shield" (protecting board members from liability) rather than a "sword" (a provision that owners can use to sue the board for lack of good faith in administrative decisions).

3. Standards of Evidence

Burden of Proof: The Petitioner (Mr. Stewart) carries the burden of proving his claims.
Preponderance of the Evidence: The standard of proof required. This is defined as evidence with the most "convincing force" or "superior evidentiary weight," sufficient to incline an impartial mind toward one side of the issue.

4. Board Reasonableness: The "Pandora’s Box" Defense

The Board denied Mr. Stewart’s variance request because they believed granting it would open a "Pandora’s Box," leading other owners to demand similar changes to common areas. The ALJ ruled this was a reasonable position for a condominium association board to take.

Procedural History

Date	Event
November 15, 2017	Association counsel informs Mr. Stewart he is in violation of CC&Rs Section 5.1.
December 27, 2017	Association attorney erroneously writes that Mr. Stewart recused himself from the matter.
February 18, 2018	Board meeting held. Mr. Stewart resigns. The Board votes to deny the variance and orders restoration of the area.
May 21, 2018	Mr. Stewart files his petition with the Arizona Department of Real Estate.
September 6, 2018	Initial hearing conducted at the Office of Administrative Hearings.
September 14, 2018	ALJ issues decision dismissing the petition.
January 2, 2019	Rehearing conducted.
January 17, 2019	Final ALJ decision issued, again dismissing the petition and affirming the Association as the prevailing party.

Short-Answer Practice Questions

1. What specific section of the CC&Rs did the Association claim Mr. Stewart violated?

Answer: Section 5.1, by making changes to common or limited common areas without prior written permission.

2. Why did the ALJ conclude that the specific details of Mr. Stewart’s changes were not "germane" to the Board's decision?

Answer: Because the Board's denial was based on the policy of not wanting to set a precedent ("opening a Pandora’s Box") for common area modifications, the physical specifics of the changes were irrelevant to that policy-based refusal.

3. What evidence did Mr. Stewart provide to suggest David Larson was biased against him?

Answer: Mr. Stewart cited a biography of Larson, meeting notes where Larson gave "Fair Notice" of enforcement actions, Larson's refusal to discuss board business in driveways, and an October 2018 letter Larson wrote urging members not to vote for Stewart in an election.

4. Why was Mr. Stewart’s evidence regarding other non-conforming units deemed not probative?

Answer: Mr. Stewart could not prove those units had requested and been granted variances (as opposed to having pre-approval or being older than two years), meaning their status did not prove the Board treated him unfairly regarding his specific variance request.

5. How did the ALJ define "Preponderance of the Evidence"?

Answer: It is the greater weight of evidence that has the most convincing force; it is superior evidentiary weight that inclines a fair mind to one side even if it doesn't free the mind of all reasonable doubt.

Essay Prompts for Deeper Exploration

Prompt 1: The Scope of Good Faith and Liability

Analyze the Association’s Bylaw Section 5.4. Discuss the legal distinction between a provision that shields a director from personal liability and a provision that creates an actionable duty of "good faith" toward individual homeowners. Why did the ALJ determine that Mr. Stewart could not use Section 5.4 as a "sword"?

Prompt 2: Fairness in HOA Enforcement

Mr. Stewart argued that he was treated unfairly because other units were not in conformity with the CC&Rs. Evaluate the evidentiary requirements for a "selective enforcement" claim based on the case text. What must a petitioner prove to demonstrate that the board is acting inconsistently or in bad faith when denying a variance?

Prompt 3: Judicial Deference to Board Decisions

The ALJ found the Board’s "Pandora’s Box" argument to be a "reasonable position." Explore the balance of power between individual property rights and the collective authority of a homeowners' association. Under what circumstances should an Administrative Law Judge overrule the discretionary decision of a community board?

Glossary of Important Terms

Administrative Law Judge (ALJ): An official who presides over hearings and makes decisions regarding disputes involving government agencies (in this case, the Department of Real Estate).
CC&Rs: Covenants, Conditions, and Restrictions; the governing documents that dictate the rules for a planned community or condominium.
Common Area: Spaces within a condominium project that are owned or used by all members of the association.
Good Faith: An honest intent to act without taking an unfair advantage over another person; acting on the basis of information actually possessed.
Indemnification: A legal agreement to provide financial protection against loss or liability.
Limited Common Area: A portion of the common area reserved for the exclusive use of one or more (but fewer than all) of the units (e.g., a patio or walkway directly outside a unit).
Preponderance of the Evidence: The standard of proof in civil and administrative cases requiring that a fact be more likely true than not.
Recusal: The act of a person (like a board member) disqualifying themselves from participating in a decision due to a potential conflict of interest.
Variance: An official deviation from the set rules or bylaws granted by the governing body (the Board).

The "Pandora’s Box" Dilemma: Lessons from the Stewart vs. Canyon Gate HOA Dispute

1. Introduction: When Home Improvements Meet HOA Realities

Imagine the satisfaction of completing a home improvement project, only to receive a cease-and-desist letter from your HOA Board. This is the nightmare scenario for many homeowners: you’ve modified a common area or balcony, believing it was your right, only to find you have bypassed the Association’s governing documents. What follows is often a high-stakes legal chess match over board authority and the elusive definition of "good faith."

The dispute in Lawrence M. Stewart vs. Canyon Gate Condominium Association, Inc. serves as a masterclass in this conflict. When Mr. Stewart implemented unauthorized changes to the common areas around his unit, he triggered a legal battle that reached the Arizona Office of Administrative Hearings—not once, but twice. This case provides a critical look at why a Board’s decision to deny a variance is often legally fortified and illustrates the steep uphill climb homeowners face when alleging "bad faith."

2. The Conflict: Unauthorized Changes and the Request for a Variance

The friction began when Mr. Stewart modified common or limited common areas without securing prior Board approval. On November 15, 2017, the Association’s legal counsel issued a stark ultimatum: submit a written request for a variance or face a civil lawsuit to compel the restoration of the area.

At the time, the situation was complicated by the fact that Mr. Stewart was a sitting member of the Board. During a tense Board meeting on February 18, 2018, the atmosphere soured. Sensing that his colleagues, Sandra Fernandez and David Larson, had already made up their minds, Mr. Stewart resigned his position mid-meeting. Immediately following his resignation, the remaining two members voted unanimously to deny the variance.

Perhaps the most telling aspect of the legal proceedings that followed was that the Association presented no witnesses. They did not need to. By relying purely on the legal interpretation of the governing documents and the Petitioner’s failure to meet his burden of proof, the Association successfully defended its position without a single person taking the stand on its behalf.

3. The Legal Tug-of-War: Is Good Faith a "Shield" or a "Sword"?

Mr. Stewart’s primary legal gambit rested on Bylaw Section 5.4, which he argued required the Board to act in "good faith." However, the Association dismantled this argument by clarifying that the bylaw was never intended to be a "sword" used to overturn Board votes. Instead, it is an indemnification provision—a "shield" designed to protect Board members from personal financial liability.

The Administrative Law Judge (ALJ) emphasized that Section 5.4 protects members from damages or monetary loss. Because Mr. Stewart was seeking to validate a variance rather than suing for money, the "shield" was legally irrelevant to his cause of action.

Petitioner’s Interpretation (Mr. Stewart)	Association’s Interpretation (Successful Argument)
Argued Section 5.4 imposes a performance duty on the Board to act in "good faith" when denying variances.	Argued Section 5.4 is an indemnification provision protecting members from personal liability.
Attempted to use the section as a "sword" to invalidate the Board’s vote.	Successfully used the section as a "shield" against liability for damages, not a standard for voting.

4. Proving Bias: Why the "Preponderance of Evidence" Matters

In administrative law, the "burden of proof" is the Petitioner's heaviest lift. Mr. Stewart was required to prove his case by a "Preponderance of Evidence." As defined in Black’s Law Dictionary 1373, this means:

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force… sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

Mr. Stewart alleged that Board member David Larson was personally biased against him. To support this, he presented three pieces of evidence across the initial hearing and a subsequent rehearing:

A Professional Biography: A bio of Mr. Larson prepared by the property manager.
Meeting Notes: Notes from November 2017 where Mr. Larson used the term "Fair Notice" regarding towing and enforcement, and stated he was too busy to discuss Board business in driveways.
Election Correspondence (Rehearing Evidence): A letter from October 2018 where Mr. Larson urged members not to vote for Mr. Stewart in an upcoming election.

The ALJ found these "feelings" of bias legally insufficient. The judge noted that the "Fair Notice" comments were standard enforcement language, and the election letter—though part of a contentious rehearing process—did not prove the original variance denial was made in bad faith. Mr. Stewart could not point to any specific biased information, and the court ruled that personal friction does not automatically equate to a legal breach of duty.

5. The "Pandora’s Box" Defense and Selective Enforcement

The Association’s most potent defense was the "Pandora’s Box" argument. They argued that granting a variance for unauthorized work would set a community-wide precedent, effectively stripping the Board of its ability to enforce standards in the future.

Citing the legal precedent of Tierra Ranchos Homeowners Ass'n v. Kitchukov, the ALJ noted that an Association must act "reasonably." The judge found the "Pandora's Box" concern to be a quintessential example of reasonableness. Even if Mr. Stewart’s changes were not "readily seen by others," the Board’s duty is to the long-term integrity of the governing documents, not the aesthetics of a single unit.

Mr. Stewart also claimed "selective enforcement," providing photos of other non-conforming units. The ALJ rejected this evidence for three reasons:

Lack of History: Stewart could not prove if those units had received variances more than two years prior.
Pre-approval Unknown: He could not confirm if those changes had been pre-approved, rendering a variance unnecessary.
No Probative Value: The photos were legally irrelevant because Stewart failed to show those owners had actually gone through the same variance process and been granted an exception.

6. Conclusion: Navigating HOA Disputes with Clarity

The final ruling was clear: the petition was dismissed, and the Canyon Gate Condominium Association was deemed the prevailing party. This case reinforces that Boards are afforded significant discretion when they act to prevent a "Pandora's Box" of non-compliance. Consistency is a Board's greatest defense, and the burden of overturning a decision is a high bar that requires more than just a sense of unfairness.

Key Takeaways for Homeowners

[ ] Prior Approval is Non-Negotiable: Always secure written approval from the Board before modifying common or limited common areas.
[ ] The "Shield" is Not a "Sword": Understand that bylaws regarding "good faith" are often designed to protect Board members from personal liability, not to provide a path to overturn their votes.
[ ] Evidence Over Emotion: To win an administrative hearing, you must provide a "preponderance of evidence." Personal feelings of bias or animosity are rarely enough.
[ ] Respect the Precedent: A Board’s primary responsibility is to the Governing Documents. Decisions based on preventing a negative community-wide precedent are almost always viewed as "reasonable" by the courts.

By adhering strictly to the governing documents and ensuring all approvals are in hand before a single hammer swings, homeowners can avoid the "Pandora’s Box" of costly, protracted litigation.

Case Participants

Petitioner Side

Lawrence M. Stewart (Petitioner)
Appeared on his own behalf

Respondent Side

Mark K. Sahl (Counsel for Respondent)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Nichols C. S. Nogami (Counsel for Respondent)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Also listed as Nicolas C. S. Nogami in related rehearing documents
Sandra Fernandez (Board Member)
Canyon Gate Condominium Association, Inc.
David Larson (Board Member)
Canyon Gate Condominium Association, Inc.

Neutral Parties

Thomas Shedden (Administrative Law Judge)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
F. Del Sol (Administrative Staff)
Office of Administrative Hearings

Michael and Nancy Berent vs, Bell West Ranch Homeowners Association

Posted on September 11, 2018 by [email protected]

Case Summary

Case ID	18F-H1818047-REL
Agency	—
Tribunal	—
Decision Date	2018-09-11
Administrative Law Judge	TE
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Michael Berent	Counsel	Pro Se
Respondent	Bell West Ranch Homeowners Association	Counsel	Maria Kupillas

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

18F-H1818047-REL Decision – 659285.pdf

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18F-H1818047-REL Decision – 952828.pdf

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Briefing on Administrative Law Judge Decision: Berent v. Bell West Ranch Homeowners Association

Executive Summary

This briefing document analyzes the administrative legal dispute between Michael and Nancy Berent (Petitioners) and the Bell West Ranch Homeowners Association (Respondent), docketed as No. 18F-H1818047-REL. The case centered on the Petitioners' challenge to a driveway extension installed by their neighbors, which the Petitioners alleged violated the Association's Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes.

The hearing was held in August 2018 before Administrative Law Judge (ALJ) Tammy L. Eigenheer. The Petitioners sought to prove that the Association failed to enforce municipal codes, allowed obstructions in a public utility easement, maintained an improperly staffed Architectural Review Committee (ARC), and failed to impose mandatory penalties.

On September 11, 2018, the ALJ issued a decision dismissing the Petition in its entirety. The ruling concluded that the Petitioners failed to meet the burden of proof required to establish any of the alleged violations. A subsequent attempt by the Petitioners to file additional documents in early 2022 was rejected by the Office of Administrative Hearings (OAH) due to a lack of jurisdiction following the final 2018 decision.

Analysis of Key Themes

1. Responsibility for Regulatory Compliance

A central theme of the dispute was whether the HOA is responsible for enforcing municipal zoning and building codes. The Petitioners argued that because the City of Surprise issued a "Notice of Ordinance Violation" regarding the neighbor's driveway extension, the HOA was obligated to take enforcement action under CC&R Section 8.02.

However, the analysis of the evidence showed:

Homeowner Liability: The HOA’s approval notice explicitly stated that homeowners must follow all local building codes and setback requirements.
Limited HOA Scope: The HOA maintained that its ARC does not check municipal codes prior to approving applications; that responsibility remains with the individual homeowner.
Definition of Structure: The ALJ found that the Petitioners failed to prove a driveway qualified as a "structure" under the specific wording of Section 8.02, which governs construction compliance.

2. Discretionary vs. Mandatory Enforcement

The Petitioners contended that the HOA was required to impose sanctions for violations, citing "common sense" and their own history of receiving notices for minor infractions like weeds.

The legal analysis centered on A.R.S. § 33-1803(B), which states that a board of directors may impose reasonable monetary penalties. The ALJ ruled that the language is permissive, not mandatory. The Respondent successfully argued that its decision not to pursue enforcement was reasonable because the City of Surprise had also declined to take further action after the initial notice of violation.

3. Evidentiary Standards and Burden of Proof

The case highlights the "Preponderance of the Evidence" standard. As the Petitioners, the Berents bore the burden of proving that the HOA committed the alleged violations. The ALJ found their evidence—primarily based on meeting minutes and personal observations—insufficient to overcome the testimony and documentation provided by the Respondent.

4. Interpretation of Easements and Obstructions

The Petitioners argued that the driveway extension interfered with a "public utility easement" due to the proximity of a fire hydrant. The ALJ rejected this theme based on two findings:

Lack of Proof: No evidence was provided to establish that the fire hydrant location was a recorded public utility easement.
Functional Use: Evidence showed the hydrant remained fully accessible. During a fire two houses away, the fire department successfully used the hydrant, running a hose across the Neighbors’ driveway without interference.

Key Parties and Entities

Entity	Role	Key Personnel/Details
Michael and Nancy Berent	Petitioners	Homeowners in Bell West Ranch; filed the dispute.
Bell West Ranch HOA	Respondent	Managed by VISION Community Management.
Tammy L. Eigenheer	ALJ	Presiding Administrative Law Judge.
Regis Salazar	Witness	Represented VISION Community Management.
City of Surprise	Municipal Body	Issued a notice of violation but took no further action.
ARC	Committee	Architectural Review Committee; approved the driveway.

Important Quotes with Context

Quote	Context
"All structures… must be constructed on the Property in compliance with any county or municipal zoning regulations… and must comply with the provisions of this Declaration."	CC&R Section 8.02: The primary regulation cited by Petitioners to argue the HOA must ensure city code compliance.
"The board of directors may impose reasonable monetary penalties on members for violations of the declaration, bylaws and rules of the association."	A.R.S. § 33-1803(B): The statutory basis for the ruling that HOA enforcement is discretionary rather than mandatory.
"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not."	Legal Standard: Used by the ALJ to explain why the Petitioners' arguments failed despite their extensive testimony.
"Ms. Salazar denied that the ARC checked municipal codes prior to approving an application."	Hearing Testimony: Establishing the HOA's stance that code compliance is the homeowner's burden, not the committee's.
"The Office of Administrative Hearings has had no jurisdiction in this matter since [September 11, 2018]."	March 8, 2022 Minute Entry: Explaining the rejection of late-filed documents by Nancy Berent.

Timeline of Significant Events

July 7, 2015: Neighbors submit a design review application for a 10' x 35' driveway extension.
July 15, 2015: The ARC approves the application with conditions regarding setbacks.
August 2015: Neighbors begin construction; Petitioners begin complaints to the Board.
May 16, 2016: City of Surprise issues a Notice of Ordinance Violation for "Nonconforming Uses and Structures."
April 26, 2018: Petitioners file their HOA Dispute Process Petition with the Arizona Department of Real Estate, paying a $2,000 filing fee.
August 15 & 22, 2018: Hearing dates at the OAH Phoenix office.
September 11, 2018: Final Decision issued dismissing all charges.
March 8, 2022: ALJ issues a "Document Reject" entry regarding recent submissions from Petitioner Nancy Berent.

Actionable Insights from the Ruling

Homeowner Due Diligence: HOA approval for a project does not supersede municipal requirements. Homeowners remain independently liable for city or county zoning compliance even if the HOA approves their design application.
Board Discretion: Association boards have broad discretion in enforcement. A violation of a CC&R does not automatically trigger a legal requirement for the board to penalize a member, especially if municipal authorities have declined to pursue the matter.
Record-Keeping Clarity: The dispute over the ARC's size (three members vs. one) was exacerbated by vague meeting minutes. The ALJ accepted testimony that the minutes merely listed the "reporter" rather than the full committee, but clearer documentation might have prevented this specific allegation.
Finality of OAH Decisions: Once a decision is issued by the OAH and the 30-day window for a rehearing request to the Commissioner of the Department of Real Estate passes, the OAH loses jurisdiction. Parties cannot continue to file evidence or documents with the ALJ after the case is closed.

Study Guide: Berent v. Bell West Ranch Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Michael and Nancy Berent (Petitioners) and the Bell West Ranch Homeowners Association (Respondent). It explores the legal issues, factual findings, and statutory interpretations surrounding a dispute over property modifications and HOA enforcement responsibilities.

Key Legal Concepts and Case Background

1. Dispute Origins

The case originated from a 2015 application by the Petitioners' neighbors to install a 10-foot by 35-foot concrete driveway extension. The Architectural Review Committee (ARC) approved the project with conditions requiring compliance with city requirements and building codes. The Petitioners challenged this approval and the subsequent lack of enforcement by the HOA.

2. The Burden of Proof

In administrative hearings of this nature, the Petitioner bears the burden of proof. They must establish that the Respondent committed the alleged violations by a preponderance of the evidence. This standard means the evidence must convince the trier of fact that the contention is "more probably true than not" or carries the "most convincing force."

3. ARC Composition and Reporting

A central point of contention was whether the ARC was properly constituted according to Section 6.02 of the CC&Rs, which requires three individuals. The Petitioners used Board of Director meeting minutes—which often listed only one individual presenting the ARC report—to argue the committee was understaffed. The Respondent successfully argued that the minutes only reflected the person presenting the report, not the total membership of the committee.

4. Discretionary Enforcement

Under A.R.S. § 33-1803(B), a board of directors may impose monetary penalties for violations of the declaration and bylaws. The Administrative Law Judge (ALJ) interpreted this language as permissive rather than mandatory, meaning an HOA is not legally required by this statute to pursue enforcement action against a member.

5. Legal Definitions of "Structure"

The case hinged on whether a driveway constitutes a "structure." Using Black’s Law Dictionary, a structure is defined as "any construction, production, or piece of work artificially built up or composed of parts purposefully joined together." The ALJ determined the Petitioners failed to prove the driveway fell under the purview of CC&R sections governing structures.

Short-Answer Practice Questions

1. What was the filing fee paid by the Petitioners to initiate the HOA Dispute Process? Answer: $2,000.00.

2. According to Section 6.02 of the CC&Rs, how many individuals must compose the Architectural Committee? Answer: Three individuals (who do not necessarily need to be members of the association).

3. Why did the HOA choose not to pursue enforcement action against the neighbors regarding the driveway extension? Answer: The Respondent decided not to pursue action because the City of Surprise had declined to take further enforcement action after issuing an initial Notice of Ordinance Violation.

4. What evidence did the Petitioners provide to suggest the fire hydrant was a public utility easement? Answer: The Petitioners did not provide specific evidence to establish the hydrant as a public utility easement; however, they noted its use by the fire department during a nearby residential fire.

5. What is the time limit for filing a request for a rehearing after an ALJ decision is served? Answer: 30 days.

6. Why did the Office of Administrative Hearings (OAH) reject documents sent by Nancy Berent in March 2022? Answer: The OAH no longer had jurisdiction over the matter, as the final decision had been issued years earlier on September 11, 2018.

Essay Prompts for Deeper Exploration

I. The Interpretation of Mandatory vs. Permissive Language

Analyze the ALJ's conclusion regarding A.R.S. § 33-1803(B). Discuss how the word "may" influences the level of accountability an HOA has toward its members. In your essay, consider whether the Petitioners' "common sense" argument for mandatory enforcement has any legal standing against the plain language of the statute.

II. Evidentiary Weight in Administrative Hearings

Compare the evidentiary value of the Board of Director meeting minutes provided by the Petitioners against the testimony of Regis Salazar from VISION Community Management. Discuss why the ALJ found the witness testimony more convincing regarding the composition of the ARC than the written meeting minutes.

III. The Scope of CC&R Restrictions

Evaluate the Petitioners' claims under Section 8.02 and 8.06. Specifically, address the legal challenge of defining a driveway as a "structure" and an "obstruction." How did the fact that the fire department successfully used the fire hydrant during a fire impact the ALJ’s ruling on the alleged obstruction of an easement?

Glossary of Important Terms

Term	Definition
A.R.S. § 33-1803(B)	The Arizona statute granting HOA boards the power to impose reasonable monetary penalties for violations.
Architectural Review Committee (ARC)	The body responsible for reviewing and approving or denying home modification applications within the HOA.
CC&Rs	Covenants, Conditions, and Restrictions; the governing documents that outline the rules and limitations for property use within a community.
Continuance	A postponement of a hearing or legal proceeding to a later date.
Jurisdiction	The legal authority of a court or administrative body to hear and decide a case.
Nonconforming Use	A land use or structure that was legal when established but does not conform to current zoning or code requirements.
Preponderance of the Evidence	The standard of proof in civil and administrative cases, requiring that a claim be more likely true than not.
Public Utility Easement	A designated area of land reserved for the installation and maintenance of public services (e.g., water, electricity, fire hydrants).
Respondent	The party against whom a petition is filed (in this case, the Bell West Ranch HOA).
Structure	Artificially built-up construction or work composed of purposefully joined parts.

Summary of Findings

Issue	ALJ Ruling	Reasoning
Section 8.02 (Zoning)	No Violation	Petitioners did not establish the driveway as a "structure" under this section.
Section 8.06 (Easements)	No Violation	No evidence that the hydrant was a public utility easement or that the driveway obstructed its use.
A.R.S. § 33-1803(B)	No Violation	The statute is permissive; the HOA is not required to take enforcement action.
Section 6.02 (ARC Size)	No Violation	Witness testimony confirmed three members; minutes only showed the reporter.

The Driveway Dilemma: Lessons from a Real-Life HOA Legal Battle

1. When Homeowner Dreams Clash with Association Rules

Homeownership in a planned community is governed by a delicate balance of individual liberty and collective regulation. However, when those interests collide, the resulting friction often leads to what we in the field call "litigious exhaustion." The case of Michael and Nancy Berent vs. Bell West Ranch Homeowners Association (No. 18F-H1818047-REL) is a quintessential example. What began as a simple neighborly improvement—a driveway extension—devolved into a multi-year administrative battle involving municipal code interpretations, fire safety allegations, and challenges to the Association’s procedural integrity. This case serves as a vital blueprint for understanding the limits of homeowner petitions and the broad scope of Board authority.

2. Chronology of a Conflict: From Concrete to Courtroom

The timeline of this dispute highlights the slow escalation from a standard architectural request to a formal administrative hearing:

July 7, 2015: The Petitioners’ neighbors submitted an Application for Design Review to install a 10×35-foot concrete driveway extension.
July 15–17, 2015: The Architectural Review Committee (ARC) approved the application with a critical "13-inch setback" condition to ensure compliance with city requirements.
August 2015: Construction commenced. The Berents immediately challenged the project, providing photographic evidence to the Board and alleging fire hydrant obstructions.
May 16, 2016: The City of Surprise issued a Notice of Ordinance Violation, labeling the extension a "nonconforming use." Crucially, however, the City ultimately declined to pursue further enforcement.
April 26, 2018: The Berents escalated the matter by filing a formal HOA Dispute Process Petition, incurring a $2,000 filing fee to bring the matter before the Office of Administrative Hearings (OAH).
August 15 & 22, 2018: Administrative Law Judge (ALJ) Tammy L. Eigenheer conducted formal hearings to adjudicate the Petitioners' claims.

3. The Four Legal Challenges: Allegations vs. Evidence

To prevail, the Petitioners had to demonstrate specific violations of the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs). The ALJ’s analysis of these four issues underscores the importance of precise legal definitions.

Issue 1: CC&R Section 8.02 (Compliance with Zoning) The Berents alleged the driveway violated municipal zoning because its entrance occupied more than 50 percent of the front lot line. However, Section 8.02 specifically applies to "structures." The ALJ ruled that the Petitioners failed to prove a flat concrete slab met the legal definition of a "structure." Utilizing Black’s Law Dictionary, the court defined a structure as: "Any construction, production, or piece of work artificially built up or composed of parts purposefully joined together." Under this standard, the driveway extension did not fall under the purview of Section 8.02, providing the Association an effective affirmative defense.

Issue 2: CC&R Section 8.06 (Utility Easements) The Petitioners claimed the driveway obstructed a fire hydrant, interfering with a public utility easement. The ALJ found this claim lacked foundational evidence, as the Berents failed to prove a recorded easement even existed. Furthermore, the defense noted that a city-authorized sidewalk already existed in front of the hydrant. Most damaging to the Petitioners' case was their own testimony: they admitted that during a recent nearby fire, the fire department successfully utilized the hydrant by running a hose across the neighbors' driveway without hindrance.

Issue 3: A.R.S. § 33-1803(B) (Enforcement Discretion) A central theme of the Berents' argument was that the HOA must penalize the neighbors following the City’s notice of violation. The ALJ corrected this misconception by pointing to the statutory language of A.R.S. § 33-1803(B), which states a board "may impose reasonable monetary penalties." This grants the Board de facto enforcement discretion. Because the City of Surprise had ceased its own enforcement efforts, the HOA’s decision to mirror that inaction was a valid exercise of administrative finality.

Issue 4: CC&R Section 6.02 (Committee Composition) The Petitioners challenged the validity of the ARC’s approval, arguing it was a one-person committee in violation of the three-person requirement in Section 6.02. They relied on meeting minutes that listed only one name—such as Ken Hawkins or Larry Bolton—under the ARC report. However, Regis Salazar of VISION Community Management testified that these minutes merely identified the individual presenting the report to the Board, not the full committee roster. The ALJ found that the Association maintained a three-member committee at all relevant times.

4. The Burden of Proof: Why the Case Was Dismissed

In administrative law, the burden of persuasion rests solely on the Petitioner. To succeed, the Berents had to establish their claims by a Preponderance of the Evidence, meaning the evidence must prove the contention is "more probably true than not."

The ALJ dismissed the petition in its entirety because the Berents relied almost exclusively on subjective testimony and "common sense" inferences. In the eyes of the law, "common sense" is not a substitute for objective documentation. While the Petitioners inferred a lack of committee members from the brevity of meeting minutes, they failed to produce actual ARC appointment logs or internal records to contradict the Association's testimony. Without superior evidentiary weight, their claims could not survive the Association's rebuttal.

5. Post-Decision Reality: The 2022 Jurisdiction Ruling

The finality of an ALJ decision is absolute once the statutory windows for appeal close. Nearly four years after the 2018 dismissal, Nancy Berent attempted to revive the matter by filing additional documents with the OAH.

In a March 8, 2022, "Minute Entry – Document Reject," the court issued a sharp reminder of legal boundaries. Once a final decision is rendered and the 30-day window for a rehearing request expires, the OAH loses all jurisdiction. Consequently, any subsequent filings are a legal nullity. The court noted that while these documents would be retained in the system, they would receive no response, as the matter was irrevocably closed.

6. Key Takeaways for Homeowners and Boards

The Berent decision offers critical insights for community governance:

Understand Discretionary Power: Statutes and CC&Rs using the word "may" grant Boards the authority to choose whether to pursue enforcement. They are not legally bound to fine a homeowner simply because a neighbor demands it.
Evidence is King: To challenge a Board’s procedure, a Petitioner needs more than inferences from meeting minutes. Direct documentation, such as appointment logs or committee rosters, is required to meet the burden of proof.
Narrow Definitions Matter: As seen with the "structure" definition, legal interpretations are often much narrower than a layperson’s "common sense" understanding.
Respect the Window of Finality: Legal remedies have a "point of no return." In Arizona HOA disputes, the 30-day window for a rehearing is the final opportunity to contest a ruling before the agency loses jurisdiction forever.

7. Conclusion: Seeking Resolution Beyond the Courtroom

The Berents' $2,000 filing fee resulted in a total dismissal, proving that HOA litigation is a high-stakes gamble with significant financial and emotional costs. This case highlights that the "Preponderance of the Evidence" standard is a high bar for homeowners who lack direct access to Association records. To avoid the frustration of a case being "dismissed in its entirety," neighbors should prioritize proactive communication and mediation. In the world of community governance, a conversation across a driveway is almost always more cost-effective than a multi-year battle in the Office of Administrative Hearings.

Case Participants

Petitioner Side

Michael Berent (Petitioner)
Filed the HOA Dispute Process Petition
Nancy Berent (Petitioner)
Testified on her own behalf

Respondent Side

Maria Kupillas (Representative)
Farmers Insurance
Represented Bell West Ranch Homeowners Association
Regis Salazar (Witness)
VISION Community Management
Ken Hawkins (Architectural Review Committee Member)
Bell West Ranch Homeowners Association
Larry Bolton (Architectural Review Committee Member)
Bell West Ranch Homeowners Association
Kelsey Dressen (Representative)
Farmers Insurance

Neutral Parties

Tammy L. Eigenheer (Administrative Law Judge)
Office of Administrative Hearings
Lana Collins (Development Service Specialist)
City of Surprise
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Louis Dettorre (Commissioner)
Arizona Department of Real Estate

Other Participants

Kristin Roebuck Bethell (Attorney)
Horne Slaton, PLLC

Tom Barrs vs Desert Ranch HOA

Posted on August 23, 2018 by [email protected]

Case Summary

Case ID	18F-H1818035-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-12-26
Administrative Law Judge	Tammy L. Eigenheer
Outcome	partial
Filing Fees Refunded	$1,000.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Tom Barrs	Counsel	—
Respondent	Desert Ranch HOA	Counsel	—

Alleged Violations

Desert Ranch Bylaw 2.4
A.R.S. § 33-1812(A)(7)
A.R.S. § 33-1804

Outcome Summary

Petitioner was deemed the prevailing party on Issues 2 (retention of election materials) and 3 (open meetings violation). Issue 1 (Bylaw 2.4 objection rule) was dismissed. Respondent was ordered to pay Petitioner $1,000.00, representing the filing fee.

Why this result: Petitioner failed to establish a violation of Bylaw 2.4 as the evidence did not show that a Director was restricted by the Member waiver clause from raising concerns about election validity after the meeting adjourned.

Key Issues & Findings

Respondent violated Bylaw 2.4 when it acted on Mr. Schoeffler’s objection to the election results raised the day after the Annual Meeting.

Petitioner alleged the HOA violated Bylaw 2.4 by investigating or acting upon an objection to election results that was raised by a Director after the Annual Meeting adjourned, thereby waiving the claim according to the bylaw.

Orders: Petition dismissed as to Issue 1.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Desert Ranch Bylaw 2.4

Respondent violated A.R.S. § 33-1812(A)(7) when it discarded the ballot envelopes at or about the time of the election.

The HOA discarded the ballot envelopes at or about the time of the election, which violated the statutory mandate to retain ballots, envelopes, and related materials for at least one year.

Orders: Petitioner established violation and was deemed the prevailing party regarding this issue. No Civil Penalty was found appropriate. The initial order included an order for Respondent to pay Petitioner the $1,000.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1812(A)(7)

Respondent violated A.R.S. § 33-1804 when it held meetings that were closed and/or without proper notice.

The HOA Board members met with an attorney following the Annual Meeting without providing any notice of the upcoming meeting and/or failing to provide notice that the meeting was closed because it involved legal advice from an attorney.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1804

Analytics Highlights

Topics: HOA Election Dispute, Records Retention, Open Meeting Violation, Filing Fee Refund

Additional Citations:

A.R.S. § 33-1812(A)(7)
A.R.S. § 33-1804
Desert Ranch Bylaw 2.4
A.R.S. § 41-2198.01

Video Overview

Audio Overview

Decision Documents

18F-H1818035-REL Decision – 678304.pdf

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18F-H1818035-REL Decision – 678305.pdf

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18F-H1818035-REL Decision – 678305.pdf

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Barrs v. Desert Ranch HOA: Case Briefing

Executive Summary

This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.

An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.

The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.

Case Overview

This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.

Case Detail

Information

Case Number

18F-H1818035-REL-RHG

Petitioner

Tom Barrs

Respondent

Desert Ranch Homeowners’ Association

Presiding Judge

Tammy L. Eigenheer, Administrative Law Judge

Initial Hearing

Not specified in document

Rehearing Date

December 6, 2018

Decision Date

December 26, 2018

Key Individuals:

• Tom Barrs: Petitioner.

• Catherine Overby: HOA President, appeared for Respondent.

• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.

• Jerome Klinger: Candidate initially announced as a winner of the election.

• Patrick Rice: Board member at the time of the election.

Chronology of the 2017 Election Dispute

1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.

2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.

3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.

4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.

5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.

6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.

7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.

8. May 10, 2017: The Board of Directors holds an organizational meeting.

Procedural History and Allegations

Initial Petition and Hearing

• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.

• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.

• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”

The three core issues alleged by the petitioner were:

1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.

2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.

3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.

Initial Decision

Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:

• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.

• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.

• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.

Rehearing and Final Order

• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.

• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.

Judicial Analysis and Final Rulings

The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.

Key Bylaw and Legal Standard

• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:

• Burden of Proof: The petitioner bore the burden of proving the violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Analysis of Issue 1: Violation of Bylaw 2.4

• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.

• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.

• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.

◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.

◦ Bylaw 2.4 applies specifically to a “Member.”

◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.

◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.

Final Order

Based on the analysis from the rehearing, the judge issued the following order:

IT IS ORDERED that the Petition be dismissed as to Issue 1.

This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.

Study Guide: Barrs v. Desert Ranch Homeowners’ Association (No. 18F-H1818035-REL-RHG)

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Tom Barrs and Respondent Desert Ranch Homeowners’ Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.

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Short-Answer Quiz

Answer each of the following questions in 2-3 sentences based on the provided source documents.

1. Who were the primary parties involved in case No. 18F-H1818035-REL-RHG, and what were their roles?

2. What specific event on March 18, 2017, served as the catalyst for the entire legal dispute?

3. What were the initial, announced results of the election held at the March 18, 2017, Annual Meeting?

4. According to the Petitioner, how did the HOA Board violate Bylaw 2.4 following the election?

5. In the initial hearing, which two of the Petitioner’s allegations were found to be valid violations committed by the Respondent?

6. Why did the Commissioner of the Arizona Department of Real Estate grant the Petitioner’s request for a rehearing?

7. During the rehearing on December 6, 2018, what was the single issue that the Petitioner chose to focus on for reconsideration?

8. According to the Administrative Law Judge’s findings, what action initiated the Board’s investigation into the election results, separate from Brian Schoeffler’s email?

9. How did the Judge’s interpretation of the terms “Member” and “Director” in the bylaws defeat the Petitioner’s primary argument on rehearing?

10. What was the final order issued by the Administrative Law Judge regarding Issue 1 after the conclusion of the rehearing?

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Answer Key

1. The primary parties were Tom Barrs, who served as the Petitioner, and the Desert Ranch Homeowners’ Association, which was the Respondent. The Petitioner, Mr. Barrs, appeared on his own behalf, while the Respondent was represented by its President, Catherine Overby, and Vice President, Brian Schoeffler.

2. The dispute was triggered by the election for two vacant seats on the HOA Board of Directors held during the Annual Meeting on March 18, 2017. The subsequent actions by the Board to investigate and ultimately overturn the initial results of this election led the Petitioner to file a dispute.

3. The initially announced results of the March 18, 2017, election declared that Ms. Catherine Overby and Mr. Jerome Klinger were the winning candidates. No members present at the meeting raised an objection to these announced results before the meeting was adjourned.

4. The Petitioner argued that the Board violated Bylaw 2.4 by acting on an objection to the election results raised by Brian Schoeffler the day after the meeting. The bylaw states that any member who fails to object to an irregularity during a meeting “forever waives that claim,” and the Petitioner argued Mr. Schoeffler, as a member, had waived his right to object.

5. In the initial hearing, the Judge found that the Petitioner successfully established two violations by the Respondent. These were a violation of A.R.S. § 33-1812(A)(7) for discarding ballot envelopes and a violation of A.R.S. § 33-1804 for holding closed meetings without proper notice.

6. The Commissioner granted the rehearing “for the reasons outlined in the Petitioner’s Rehearing Request.” The Petitioner’s request cited multiple grounds, including misconduct by the prevailing party, errors of law, and that the initial findings of fact were not supported by the evidence or were contrary to law.

7. At the rehearing, the Petitioner stated he was only seeking reconsideration of the initial decision as it related to Issue 1. This issue was the allegation that the Board improperly overturned the election results in violation of Bylaw 2.4.

8. The Judge found that the Board’s investigation was initiated by Mr. Patrick Rice, a Board member at the time, who expressed his concerns with the vote “immediately after the Annual Meeting adjourned.” This occurred prior to and independent of the email sent by Brian Schoeffler the following day.

9. The Judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific and non-interchangeable meanings. Because the Petitioner made no showing that a “Director” (like Mr. Rice) could not raise questions after a meeting, the restriction on “Members” in Bylaw 2.4 did not apply to the Board’s actions.

10. The final order stated that the Petition was to be dismissed as to Issue 1. The Judge concluded that the Petitioner failed to sustain his burden of proof to establish that the Respondent had violated Bylaw 2.4.

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Essay Questions

1. Analyze the timeline of events from the Annual Meeting on March 18, 2017, to the run-off election on April 29, 2017. Discuss the key actions taken by the HOA Board—including the meeting with an attorney and the discovery of invalid ballots—and explain how these actions led to the legal dispute.

2. Detail the three distinct issues the Petitioner alleged in his “Clarification of Three Issues alleged in Petition.” Based on the outcome of the initial hearing, evaluate the success of these claims and explain why the Petitioner prevailed on some issues but not others.

3. The Petitioner’s case on rehearing hinged on the interpretation of Bylaw 2.4. Construct the Petitioner’s argument regarding this bylaw and then fully explain the Administrative Law Judge’s legal reasoning for ultimately rejecting it, focusing on the distinction between “Members” and “Directors.”

4. Discuss the concept of “burden of proof” as it is defined and applied in this case. Explain the “preponderance of the evidence” standard and analyze how the Petitioner’s failure to meet this standard led to the dismissal of Issue 1 on rehearing.

5. Examine the procedural history of the case, from the initial single-issue petition to the final binding order after rehearing. What were the key procedural steps, such as amending the petition and filing for a rehearing, and how did these steps shape the final scope and outcome of the case?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Tammy L. Eigenheer.

A.R.S.

Abbreviation for Arizona Revised Statutes, the collection of laws for the State of Arizona. The Petitioner alleged violations of several statutes, including A.R.S. § 33-1813, § 33-1811, § 33-1812, and § 33-1804.

Bylaw 2.4

The specific bylaw of the Desert Ranch HOA that was the central focus of the rehearing. It states, “Any Member who fails to object to any perceived or actual irregularity at the meeting… forever waives that claim.”

Burden of Proof

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

Department

The Arizona Department of Real Estate, the state agency with which the Homeowners Association Dispute Process Petition was filed.

Director

An elected member of the HOA’s Board of Directors. The ALJ’s decision distinguished this role from that of a general “Member.”

Homeowners Association (HOA)

The governing organization for the planned community of Desert Ranch, responsible for enforcing community documents and statutes.

Member

A homeowner within the planned community. The ALJ’s decision emphasized that in the bylaws, this term has a specific meaning that is not interchangeable with “Director.”

Petitioner

The party who initiates a legal action or petition. In this case, the Petitioner was Tom Barrs.

Preponderance of the Evidence

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

Rehearing

A second hearing of a case, granted in this instance by the Commissioner of the Arizona Department of Real Estate, to reconsider the initial decision based on alleged errors.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Desert Ranch Homeowners’ Association.

5 Shocking Lessons from an HOA Election Gone Wrong

Introduction: When “The Rules” Aren’t What You Think

Homeowners’ Associations (HOAs) run on rules. From lawn maintenance to paint colors, the governing documents are the ultimate authority. But what happens when the rules themselves become the center of a dispute? Imagine this scenario: your HOA holds its annual board election. The results are announced, the winners are declared, and everyone goes home. Then, the next day, the board decides to overturn the result.

This isn’t a hypothetical. It’s the core of a real-life legal case that reveals surprising truths about community governance, the power of a single word, and what can happen when an election goes off the rails.

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1. An Election Isn’t Over Until the Board Says It’s Over

The dispute began at the Desert Ranch Homeowners’ Association Annual Meeting on March 18, 2017. The ballots for two open board seats were counted, and Catherine Overby and Jerome Klinger were announced as the winning candidates. Crucially, no members present raised an objection before the meeting adjourned. By all appearances, the election was over.

But it wasn’t. Immediately after the meeting, a board member, Mr. Rice, gathered the ballots and expressed his concerns with the election results. The next day, the losing candidate, Brian Schoeffler, sent an email asking the board to “review the situation” and consider a “revote.” The board then formally announced that the election had been contested and that it was obligated to investigate.

After consulting an attorney, the board discovered several ballot irregularities, including duplicate ballots and an improperly counted proxy ballot. This new tally resulted in a tie between Mr. Schoeffler and Mr. Klinger. The board then forced a run-off election, which Mr. Schoeffler ultimately won. While the losing candidate’s email drew attention, the true turning point had already occurred moments after the meeting ended, when a board member himself questioned the results—an act that would prove legally decisive.

2. A Single Word in the Bylaws Can Change Everything

The homeowner who filed the legal petition, Tom Barrs, built his case on a seemingly straightforward rule in the HOA’s bylaws. He argued that any challenge to the election was invalid because it wasn’t raised before the Annual Meeting adjourned. The bylaw in question, Section 2.4, reads:

Any Member who fails to object to any perceived or actual irregularity at the meeting (whether procedural, parliamentary, substantive or technical) forever waives that claim.

The petitioner’s argument was simple: the challenge was raised after the meeting by a “Member,” so the claim was waived. The case seemed open-and-shut.

However, the Administrative Law Judge made a critical distinction that decided the case. The judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific meanings and were not interchangeable. While a Member had to object during the meeting, the judge found no rule preventing a Director from raising questions later.

Because a board member, Mr. Rice, had expressed concerns immediately following the meeting, the board’s subsequent investigation was deemed permissible. This razor-thin interpretation of a single word highlights the immense power that definitions and precise language hold in governing documents.

3. The Board Broke the Law, But Still Won on the Main Issue

In a surprising twist, the judge determined that the HOA had, in fact, violated Arizona state law on two separate counts during the election controversy. The petitioner successfully proved that the board failed to follow established statutes.

The two violations established in the initial hearing were:

• Improper Destruction of Ballots: The HOA violated A.R.S. § 33-1812(A)(7) when it destroyed all of the ballot envelopes around the time of the election. This act made a true, verifiable recount impossible, directly undermining the integrity of the very election the board was claiming to investigate.

• Improper Meetings: The HOA violated A.R.S. § 33-1804 by holding closed meetings without providing proper notice to the members, particularly a meeting at the home of a board member, Ms. Overby, where the decision to hold a run-off was made. By making these critical decisions behind closed doors, the board created an appearance of secrecy that fueled the dispute and eroded member trust.

Despite proving these clear legal violations, the petitioner still lost on his primary complaint—overturning the run-off and reinstating the original election results. This outcome serves as a stark example of a pyrrhic victory. You can successfully prove that an organization broke the rules without achieving your ultimate goal in the dispute.

4. An Investigation Can Uncover a Cascade of Deeper Problems

The board’s decision to contest its own election results was controversial, but the subsequent investigation brought a cascade of other procedural failures to light. The initial challenge acted like a pulled thread that unraveled a series of previously unknown mistakes.

During the board’s meeting with its attorney, it was discovered that “duplicate ballots and a proxy ballot that were improperly counted” had skewed the original vote. This alone was enough to call the first result into question.

Furthermore, the board itself asserted that its own bylaws “did not allow for a write-in candidate.” This was a significant admission, as one of the original winners, Jerome Klinger, had been a write-in. If true, his victory would have been invalid from the start, regardless of any other challenges. The board’s investigation, initiated to resolve one perceived error, ended up exposing its own systemic incompetence—from improperly counting ballots to being unaware of its own rules regarding write-in candidates. The effort to fix the election proved the election was fundamentally broken from the start.

5. An HOA Board Can Investigate Itself

The petitioner’s case rested on the idea that board members are also “Members” of the association and are therefore bound by the same rules. If a regular member had to object during the meeting, a director should have to as well.

The judge rejected this argument, implicitly affirming the board’s higher-level fiduciary duty to ensure a fair and legal election. The final decision made it clear that the bylaws used “Member” and “Director” with distinct meanings and responsibilities. The bylaw requiring members to object during the meeting was the mechanism for an individual’s challenge; it did not override the board’s inherent duty to govern properly.

The key takeaway from the judge’s decision was unambiguous: The petitioner “made no showing that a Director could not raise questions as to the validity of the election results after the meeting adjourned.” This legally affirms a board’s power to investigate its own processes, a responsibility separate from the rules that govern challenges from the general membership.

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Conclusion: Have You Read Your Bylaws Lately?

This case serves as a powerful reminder that the dense, legalistic language of HOA governing documents is not just boilerplate. These documents have immense real-world power, dictating the outcomes of contentious disputes and shaping the governance of a community. The intricate details and specific wording can mean the difference between a final result and one that is just the beginning of a long and costly fight.

This entire, year-long legal battle hinged on the definition of a single word. When was the last time you read the fine print governing your own community?

Case Participants

Petitioner Side

Tom Barrs (petitioner)
Appeared on his own behalf,.
Stephen Barrs (witness)
Testified for Petitioner,.

Respondent Side

Catherine Overby (board member/president)
Desert Ranch HOA
Appeared on behalf of Respondent,; Board President,; testified at hearing,.
Brian Schoeffler (board member/vice president)
Desert Ranch HOA
Appeared on behalf of Respondent,; Board Vice President,; testified at hearing,.
Patrick Rice (board member)
Desert Ranch HOA
Board member who expressed concerns immediately after the meeting,,,; involved in meeting with attorney,.

Neutral Parties

Tammy L. Eigenheer (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner (ADRE))
Arizona Department of Real Estate
Issued Order Granting Rehearing; recipient of decision copy,.
LDettorre (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.
ncano (ADRE staff)
Arizona Department of Real Estate
Recipient of decision copy.

Other Participants

Jerome Klinger (board director)
Desert Ranch HOA
Initially announced as a winning candidate for director,; later removed after contest; involved in run-off,.
Paula Barrs (listed resident)
Listed with Tom Barrs on mailing address.

Peter Biondi, Jr. vs. Lakeshore at Andersen Springs Homeowners

Posted on August 21, 2018 by [email protected]

Case Summary

Case ID	18F-H1818048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-08-21
Administrative Law Judge	Diane Mihalsky
Outcome	The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Peter Biondi, Jr.	Counsel	—
Respondent	Lakeshore at Andersen Springs Homeowners Association	Counsel	Maria R. Kupillas

Alleged Violations

A.R.S. §§ 33-1242, 33-1243, Respondent’s Bylaw Article II, Section 3 and Article III, Sections 2 and 3, and Respondent’s CC&Rs Section 8.13

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.

Why this result: The Board's previous action of removing directors was illegal under A.R.S. § 33-1243 because director removal must be performed by a member vote. Because the HOA lacked a legal defense to the directors' challenge, the current petition failed to prove a violation when the sole remaining Director chose not to incur unnecessary fees contesting an unwinnable case, which was permissive under A.R.S. § 33-1242.

Key Issues & Findings

Alleged failure of the sole remaining Director to defend a prior petition challenging the board's removal of two directors.

Petitioner alleged the HOA violated governing documents and statutes when the remaining Director chose not to contest a prior Department petition filed by two removed Directors, resulting in their reinstatement. The ALJ found that the initial removal of the Directors by fellow Directors was illegal under A.R.S. § 33-1243(B) and (H), which reserves removal power to members. Because the HOA lacked a good legal defense, the remaining Director's decision not to defend the prior petition, based on legal advice, was permissive under A.R.S. § 33-1242 and not a violation.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1243
A.R.S. § 33-1242
A.R.S. § 32-2199(1)
A.R.S. § 33-1803

Analytics Highlights

Topics: Condominium, HOA Director Removal, Board Authority, Condo Bylaws

Additional Citations:

A.R.S. § 33-1243
A.R.S. § 33-1242
A.R.S. § 32-2199
A.R.S. § 33-1248
A.R.S. § 33-1803
A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2026-04-24T11:13:38 (155.5 KB)

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2026-01-23T17:24:48 (155.5 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Biondi v. Lakeshore at Andersen Springs HOA

Executive Summary

This document synthesizes the findings of the Administrative Law Judge (ALJ) decision in Case No. 18F-H1818048-REL, where a petition filed by homeowner Peter Biondi, Jr. against the Lakeshore at Andersen Springs Homeowners Association (HOA) was denied. The central conflict revolved around the HOA Board’s removal of two directors, Jim Luzzis and Jerry Dubasquier, for alleged violations of the association’s leasing restrictions.

The ALJ’s decision rested on a critical point of law: the HOA Board acted improperly and in violation of Arizona state statute when it removed two of its own members. According to A.R.S. § 33-1243, the power to remove a board director is reserved exclusively for the association’s members (the unit owners) through a formal petition and vote, not for the Board of Directors itself.

Because the initial removal was legally invalid, the subsequent actions of the sole remaining director, Bonnie Henden, were deemed reasonable and permissible. Her decision not to defend the HOA against a petition from the improperly removed directors, a choice made upon the advice of three separate attorneys, was not a violation of her duties. The governing statute (A.R.S. § 33-1242) uses the permissive term “may” regarding the defense of litigation, and the ALJ concluded that no entity is required to mount a defense that is ill-advised and likely to fail. Consequently, Henden’s reinstatement of the directors was a logical correction of the Board’s unlawful action. The factual question of whether the directors had violated the leasing rules was considered secondary to this overriding procedural and statutory failure by the Board.

Case Background and Procedural History

The dispute originated from complaints by HOA members that two serving directors, Jim Luzzis and Jerry Dubasquier, were violating Section 8.13 of the Covenants, Conditions, and Restrictions (CC&Rs) by renting their units as short-term Vacation Rental By Owner (“VRBOs”).

1. Initial Board Action: The Board of Directors met to consider the complaints, concluded that Luzzis and Dubasquier had violated the CC&Rs, and gave them 14 days to remedy the violation by presenting compliant long-term rental agreements.

2. Removal of Directors: At a contentious executive session on January 4, 2018, the five other directors voted to remove or disqualify Luzzis and Dubasquier from the Board. Board member Bonnie Henden testified that she felt this action was a “vendetta” against the two directors for taking opposing positions on other issues.

3. Board Collapse: Following the removal, the Board structure disintegrated. The petitioner, Peter Biondi, Jr., and another director, Jeffrey Washburn, “decided to resign in order to restore calm in the community.” A third director was removed or resigned due to non-payment of assessments. By March or April 2018, this left Bonnie Henden as the sole remaining director.

4. Legal Challenge and Reinstatement: Luzzis and Dubasquier filed a petition with the Arizona Department of Real Estate to protest their removal. After consulting with three different attorneys, Henden chose not to file an answer on behalf of the HOA. The Department subsequently issued a decision in favor of Luzzis and Dubasquier. Following this outcome, Henden reinstated them to the Board to complete their elected terms and cancelled the planned election for their replacements.

5. Petitioner’s Complaint: On May 9, 2018, Peter Biondi, Jr. filed the current petition, alleging that Henden’s refusal to defend the HOA and her decision to reinstate the two directors constituted a violation of Arizona statutes (§§ 33-1242 and 33-1243), HOA Bylaws, and CC&Rs.

Central Legal Issues and Findings

The ALJ determined that the petitioner, Biondi, bore the burden of proof but that the operative facts of the case were not in dispute. The core of the case was not a factual determination but a legal one.

The Dispositive Question: Legality of Director Removal

The judge identified the central legal question as the primary determinant of the case’s outcome:

“…the dispositive issue is not the factual issue of whether Messrs. Luzzis and Dubasquier violated CC&R Section 8.13 by using their units as short-term VRBOs, but the legal issue of whether the other directors on Respondent’s Board properly removed them from the Board…”

The ruling established that the Board’s method of removal was the critical point of failure, rendering the underlying CC&R violation secondary.

Analysis of Arizona Revised Statutes (A.R.S.)

The decision was grounded in a de novo review of A.R.S. § 33-1243, which governs the powers and removal of a condominium association’s board of directors.

• A.R.S. § 33-1243(B): This subsection explicitly prohibits a board from acting on behalf of the association to “determine the qualifications, powers and duties or terms of office of board of directors members.” The ALJ found that the Board’s vote to disqualify Luzzis and Dubasquier was in direct violation of this provision.

• A.R.S. § 33-1243(H): This subsection establishes the exclusive procedure for removing a director, stating that its provisions apply “notwithstanding any provision of the declaration or bylaws to the contrary.” The statute mandates that removal can only be accomplished by:

1. A petition signed by a specified percentage or number of eligible unit owners (e.g., 25% or 100 votes, whichever is less, for an association of 1,000 or fewer members).

2. A majority vote of the unit owners at a special meeting called for this purpose within 30 days of receiving the petition.

The ALJ’s conclusion was unequivocal: “The referenced provisions of A.R.S. § 33-1243 specifically and unequivocally require that the members who elected a director must remove the director.” Because the Board failed to follow this statutory procedure, its removal of Luzzis and Dubasquier was legally invalid, and the HOA “lacked any good legal defense” to their subsequent petition.

The Legality of the Sole Director’s Actions

Based on the finding that the initial removal was unlawful, the ALJ assessed the actions taken by the sole remaining director, Bonnie Henden.

Decision Not to Defend the HOA

The petitioner argued Henden had a duty to defend the HOA against the petition from Luzzis and Dubasquier. The ALJ rejected this argument by citing A.R.S. § 33-1242(A)(4), which states an association “may… defend or intervene in litigation or administrative proceedings.”

The judge’s legal interpretation was that the word “may” indicates permissive intent, not a mandatory requirement. Henden was not statutorily obligated to contest the petition. Her decision was further supported by the legal advice she received from three attorneys, who advised that a defense would likely fail and result in unnecessary legal fees for the association. The ALJ affirmed this prudence, stating, “No statute requires a condominium association or a director to take an ill-advised act or to mount a defense of a previously taken ill-advised act that likely will fail on its merits.”

Reinstatement of Removed Directors

Henden’s decision to reinstate Luzzis and Dubasquier to the Board was found to be a direct and logical consequence of the legally improper removal. By reinstating them, she was correcting the Board’s previous unlawful action.

Relevant Governing Documents and Testimony

Document/Testimony

Key Provisions or Content

Relevance to Decision

A.R.S. § 33-1243

Prohibits boards from determining member qualifications and mandates that only unit owners can remove directors via a petition and vote.

This was the controlling statute that rendered the Board’s initial removal of Luzzis and Dubasquier unlawful.

A.R.S. § 33-1242

States an association “may” defend itself in litigation.

Provided the legal basis for Henden’s discretionary and permissible decision not to defend the HOA.

HOA CC&Rs Section 8.13

Prohibits leasing for “transient, hotel, club, timeshare or similar purposes” and requires all leases to be for a minimum of six months.

This section was the basis for the original complaint but was deemed not the dispositive issue in the case.

HOA Bylaws Article III

Governs director qualifications, number, and the filling of vacancies.

While relevant to Board governance, these bylaws were superseded by the conflicting and more specific state statute (A.R.S. § 33-1243).

Bonnie Henden Testimony

Stated the removal felt like a “vendetta” and that she consulted three attorneys before deciding not to defend the HOA.

Provided context for the internal Board conflict and established that her actions were taken after seeking extensive legal counsel.

Peter Biondi, Jr. Evidence

Submitted exhibits showing Luzzis and Dubasquier were continuing to advertise their units as VRBOs.

The evidence was acknowledged but deemed irrelevant to the central legal question of whether the Board had the authority to remove them.

Final Order and Conclusion

The Administrative Law Judge ordered that the petitioner’s petition be denied.

The final decision establishes a clear legal principle: a homeowners association’s Board of Directors does not have the authority to remove its own members in Arizona. That power is reserved for the unit owners through a specific statutory process. Any action taken by a board in contravention of this statute is legally invalid. Consequently, a director’s decision not to defend such an invalid action, especially when based on legal advice, is not a breach of duty but a prudent measure to avoid wasting association resources on a defense with no legal merit.

Study Guide: Biondi v. Lakeshore at Andersen Springs Homeowners Association

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 18F-H1818048-REL, concerning a dispute between a condominium owner and a homeowners association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal document.

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Short-Answer Quiz

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

1. Who were the Petitioner and the Respondent in this case, and what was their relationship?

2. What specific event prompted the Petitioner, Peter Biondi, Jr., to file a petition with the Arizona Department of Real Estate?

3. According to the Respondent’s CC&Rs (Section 8.13), what were the rules regarding the leasing of condominium units?

4. Why were Board Directors Jim Luzzis and Jerry Dubasquier initially removed from their positions by the other directors?

5. How did Bonnie Henden become the sole remaining member of the Respondent’s Board of Directors?

6. What was the “dispositive issue” that the Administrative Law Judge identified as central to the case?

7. According to Arizona Revised Statute (A.R.S.) § 33-1243(H), what is the proper procedure for removing a member of a condominium association’s board of directors?

8. Why did Ms. Henden choose not to defend the association against the petition filed by Messrs. Luzzis and Dubasquier?

9. What does the legal standard “preponderance of the evidence” mean, as defined in the decision?

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

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Answer Key

1. The Petitioner was Peter Biondi, Jr., who is a condominium owner and a member of the Lakeshore at Andersen Springs Homeowners Association. The Respondent was the Lakeshore at Andersen Springs Homeowners Association itself.

2. The Petitioner filed the petition because the Board’s sole remaining member, Bonnie Henden, refused to defend the association against a petition filed by two former directors. Instead of defending the board’s prior action, Ms. Henden reinstated the two directors who had been removed.

3. Section 8.13 of the CC&Rs stipulated that all leases must be for a minimum of six months and that units could not be leased for transient, hotel, or similar purposes. Owners were also limited to leasing their unit no more than two separate times in any 12-month period and had to provide a signed copy of the lease to the association.

4. Messrs. Luzzis and Dubasquier were removed after other Board members concluded they had violated CC&R Section 8.13 by renting their units as short-term Vacation Rentals By Owner (VRBOs). The removal occurred after they were given 14 days to remedy the violation and failed to do so to the Board’s satisfaction.

5. After the removal of Luzzis and Dubasquier, the Petitioner and another director resigned to “restore calm.” A third director was removed or resigned for failing to pay an assessment, which left Ms. Henden as the only director on the Board.

6. The dispositive issue was not the factual question of whether Luzzis and Dubasquier had violated the CC&Rs. Rather, it was the legal issue of whether the other directors had the authority to properly remove them from the Board in the first place.

7. A.R.S. § 33-1243(H) states that unit owners may remove a board member by a majority vote at a meeting. This process must be initiated by a petition signed by a specific percentage or number of the association’s members who are eligible to vote.

8. Ms. Henden consulted three different attorneys who advised her that the association would likely lose the case. Their legal advice was based on A.R.S. § 33-1243, which states that board members cannot remove other board members, and defending the improper removal would incur unnecessary legal fees.

9. “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 described as the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge concluded that the Board’s initial removal of the two directors was improper under state law and that Ms. Henden was not required to defend that ill-advised act.

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Essay Questions

The following questions are designed for longer-form analysis and synthesis of the case details. Answers are not provided.

1. Analyze the conflict between the authority granted to the Board in the Lakeshore at Andersen Springs Bylaws (Article III, Sections 2 & 3) and the limitations placed upon it by Arizona Revised Statute § 33-1243. Explain which document takes precedence in the matter of director removal and why, citing the reasoning used by the Administrative Law Judge.

2. Discuss the role and actions of Bonnie Henden after she became the sole remaining director. Evaluate her decision to reinstate Messrs. Luzzis and Dubasquier, considering the legal advice she received, her powers as the sole director, and the potential consequences for the homeowners association.

3. Trace the procedural history of this dispute, beginning with the initial complaints about VRBOs and culminating in the final Administrative Law Judge Decision. Identify the key actions, legal filings, and turning points for each party involved (Luzzis/Dubasquier, the Board, Peter Biondi, and Bonnie Henden).

4. The judge states that the case hinges on a legal issue, not a factual one. Explain the difference between the factual issue (the VRBO rentals) and the legal issue (the removal process) and detail how this distinction was fundamental to the case’s outcome.

5. Based on the statutes cited in the decision, outline the correct, legally compliant process that the members of the Lakeshore at Andersen Springs Homeowners Association should have followed if they wished to remove Messrs. Luzzis and Dubasquier from the Board of Directors. Contrast this with the actions the Board actually took.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, in this case Diane Mihalsky from the Office of Administrative Hearings.

A.R.S.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The decision references several statutes from Title 33 concerning property and condominiums.

Bylaws

The rules and regulations adopted by an organization, such as a homeowners association, for its internal governance. In this case, they govern matters like annual meetings and the composition of the Board of Directors.

Abbreviation for Covenants, Conditions and Restrictions. These are legally binding rules recorded with the property deed that govern what homeowners can and cannot do with their property. Section 8.13 on leasing was a key CC&R in this case.

De Novo Review

A type of legal review where a court or administrative body decides the issues without reference to any legal conclusions or assumptions made by the previous party that heard the case. It is used for determining the construction and application of statutes.

Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium associations.

Petitioner

The party who files a petition or brings an action in a legal proceeding. In this case, the Petitioner was Peter Biondi, Jr.

Preponderance of the Evidence

The standard of proof in most civil cases. It requires the party with the burden of proof (the Petitioner in this matter) to present evidence that is more convincing and more likely to be true than not.

Respondent

The party against whom a petition is filed or an appeal is brought. In this case, the Respondent was the Lakeshore at Andersen Springs Homeowners Association.

Abbreviation for Vacation Rental By Owner, referring to the practice of renting out properties on a short-term basis, similar to a hotel. This practice was alleged to be in violation of the association’s CC&Rs.