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Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

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Case Summary

Case ID 19F-H1919068-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-04
Administrative Law Judge Thomas Shedden
Outcome The ALJ found the HOA violated CC&R 4.3 regarding the timing of budget delivery. While the Petitioner prevailed on the violation and was awarded the $500 filing fee, the ALJ denied the request to rescind the dues increase and denied civil penalties.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J. Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Nicole Payne

Alleged Violations

CC&R 4.3

Outcome Summary

The ALJ found the HOA violated CC&R 4.3 regarding the timing of budget delivery. While the Petitioner prevailed on the violation and was awarded the $500 filing fee, the ALJ denied the request to rescind the dues increase and denied civil penalties.

Key Issues & Findings

Failure to deliver budget 15 days prior to meeting

Petitioner alleged the HOA violated CC&R 4.3 by failing to deliver the budget 15 days before the meeting. The HOA mailed the budget exactly 15 days prior (Jan 2 for Jan 17 meeting), but the ALJ ruled the contract required delivery, not just mailing, 15 days prior.

Orders: Respondent must pay to Petitioner his filing fee of $500.00 within thirty days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Video Overview

Audio Overview

Decision Documents

19F-H1919068-REL Decision – 735330.pdf

Uploaded 2026-04-24T11:21:24 (80.1 KB)

19F-H1919068-REL Decision – 735330.pdf

Uploaded 2026-01-27T21:17:02 (80.1 KB)

Administrative Decision Briefing: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative law decision in Case No. 19F-H1919068-REL, involving Petitioner Michael J. Stoltenberg and Respondent Rancho Del Oro Homeowners Association. The central dispute concerned whether the Association complied with its Covenants, Conditions, and Restrictions (CC&Rs) regarding the timely delivery of budget documentation to members.

The Administrative Law Judge (ALJ), Thomas Shedden, determined that the Association violated CC&R section 4.3 by failing to deliver the 2019 budget to the Petitioner at least fifteen days before the annual meeting. While the Petitioner was declared the prevailing party and awarded a refund of his $500 filing fee, the court declined to rescind the 2019 dues increase or issue civil penalties.

Detailed Analysis of Key Themes

1. Interpretation of Delivery Timelines

The core of the legal dispute rested on the distinction between "mailing" and "delivery." CC&R section 4.3 stipulates that the Board must cause a copy of the budget and assessment amounts to be delivered to each unit owner at least fifteen days prior to the meeting where the budget is presented.

The evidence established that:

  • The annual meeting occurred on January 17, 2019.
  • The Association mailed the budget on January 2, 2019 (exactly fifteen days before the meeting).
  • The Petitioner did not actually receive the budget fifteen days before the meeting.

The ALJ concluded that merely placing the budget in the mail fifteen days prior does not satisfy a requirement for "delivery" by that same date, as the transit time naturally delays the delivery beyond the required window.

2. Contractual Nature of CC&Rs

The decision reinforces the legal principle that CC&Rs constitute a binding contract between a Homeowners Association and its members. The tribunal emphasized that:

  • Both parties are required to comply with the explicit terms of the CC&Rs.
  • The court must give effect to the "clear and unambiguous terms" of these documents.
  • The Association’s failure to meet the specific delivery deadline constituted a breach of its contractual duty under section 4.3.
3. Burden of Proof and Evidentiary Standards

The Petitioner bore the burden of proof under the standard of a "preponderance of the evidence." This case highlights how credible personal testimony, combined with physical evidence (such as a postmarked envelope), can meet this standard. The ALJ found the Petitioner's testimony regarding the receipt of the budget to be credible, which was sufficient to incline the "fair and impartial mind" toward his side of the issue.

4. Remedies and Judicial Discretion

While the Petitioner successfully proved a violation, the court exercised discretion regarding the requested remedies. The decision illustrates a distinction between a procedural violation and the substantive validity of Association actions:

  • Procedural Violation: Confirmed (Late delivery of budget).
  • Awarded Remedy: Refund of the $500 filing fee to the Petitioner.
  • Denied Remedies: The court refused to rescind the 10% dues increase and declined to issue civil penalties, as the Petitioner failed to demonstrate that such measures were appropriate or necessary.

Key Case Data

Category Details
Case Number 19F-H1919068-REL
Administrative Law Judge Thomas Shedden
Hearing Date August 21, 2019
Decision Date September 4, 2019
Relevant CC&R Section 4.3 (Budget Delivery)
Prevailing Party Michael J. Stoltenberg
Financial Award $500.00 (Filing Fee Reimbursement)

Important Quotes with Context

On the Definition of Preponderance of Evidence

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." (Citing Black’s Law Dictionary)

Context: This quote establishes the legal threshold the Petitioner had to meet to prove the Association violated the CC&Rs.

On Contractual Compliance

"The CC&Rs are a contract between the parties and the parties are required to comply with its terms… the tribunal must give effect to a contract’s clear and unambiguous terms."

Context: The ALJ used this to explain why the Association could not be excused from the strict 15-day delivery requirement, regardless of their mailing efforts.

On the Specific Violation

"The preponderance of the evidence shows that the Association placed the budget in the mail on January 2, 2019, which is fifteen days before the meeting, but it was not delivered to Mr. Stoltenberg on that date and was not delivered to him fifteen days before the meeting as required."

Context: This finding is the pivot point of the decision, clarifying that mailing a document on the deadline date is insufficient if the requirement is "delivery."

Actionable Insights

For Homeowners Associations
  • Buffer Mailing Dates: When CC&Rs require "delivery" by a certain date, Associations should account for mail transit times. Mailing exactly on the deadline (e.g., 15 days before a meeting for a 15-day requirement) will likely result in a violation if the document is not received on that same day.
  • Review Mandatory Timelines: Associations must strictly adhere to the timelines set in their CC&Rs for budget preparation (60 days prior to fiscal year) and member notification (30 days prior to meetings).
  • Dues Increase Authority: The case notes that dues increases up to 10% do not require membership approval under these specific CC&Rs, though procedural notice requirements still apply.
For Association Members
  • Documenting Receipts: Maintaining evidence of postmarks and arrival dates is crucial when alleging procedural violations by an Association.
  • Single-Issue Petitions: Petitioners should be aware that administrative hearings may require identifying a single issue or paying additional fees for multi-issue hearings.
  • Limited Remedies: Even if a violation is proven, the court may only award the recovery of filing fees rather than the rescission of Association financial decisions (like dues increases) unless a specific harm or lack of authority is demonstrated.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This study guide provides a comprehensive overview of the administrative law case Michael J. Stoltenberg v. Rancho Del Oro Homeowners Association (No. 19F-H1919068-REL). It covers the legal standards, factual findings, and final rulings issued by the Arizona Office of Administrative Hearings.

Core Case Overview

The case centers on a dispute regarding the procedural requirements for notifying homeowners of annual budgets and assessment increases. The Petitioner, Michael J. Stoltenberg, alleged that the Rancho Del Oro Homeowners Association (the Association) failed to comply with its Covenants, Conditions, and Restrictions (CC&Rs) regarding the timely delivery of budget documentation.

Key Legal Standards
  • Jurisdiction: The Arizona Department of Real Estate has authority over this matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.
  • Burden of Proof: The Petitioner bears the burden of proof.
  • Standard of Proof: The standard is a "preponderance of the evidence," defined as the greater weight of the evidence or evidence that has the most convincing force.
  • Contractual Nature of CC&Rs: Legal precedent establishes that CC&Rs are a contract between the parties, and the tribunal must give effect to the contract’s clear and unambiguous terms.

Factual Findings and Timeline

The dispute focused on the Association's actions leading up to the 2019 fiscal year and its annual meeting.

2019 Budget and Dues Increase
  • Meeting Date: The Association conducted its annual meeting on January 17, 2019.
  • Dues Adjustment: Monthly dues were increased by 10% to a total of $154 per month. Under the Association's rules, dues increases of up to 10% do not require membership approval.
  • Notice of Increase: The Association informed members of the dues increase in November 2018.
CC&R Section 4.3 Requirements

Section 4.3 of the CC&Rs outlines specific timelines for the Board of Directors:

  1. Preparation: The budget must be prepared at least 60 days before the fiscal year and at least 30 days before the meeting where it is presented.
  2. Delivery: A copy of the budget and assessment amounts must be delivered to each unit owner at least 15 days prior to the meeting.
The Violation

The evidence showed that the Association postmarked the 2019 budget on January 2, 2019. While this was 15 days before the January 17 meeting, the budget was not actually delivered to Mr. Stoltenberg 15 days prior. The Administrative Law Judge (ALJ) determined that mailing the document on the 15th day did not satisfy the requirement for delivery "at least fifteen days prior" to the meeting.

Short-Answer Practice Questions

1. Who had the burden of proof in this matter, and what was the required standard?

The Petitioner (Michael J. Stoltenberg) had the burden of proof, and the required standard was a "preponderance of the evidence."

2. Why was the Petitioner required to limit his petition to a single issue?

The Administrative Law Judge informed the Petitioner that his initial petition encompassed multiple issues (violations of CC&R 1.8, 1.9, 2.1, 3.1, etc.). He was required to either identify a single issue for the hearing or pay a fee for a multi-issue hearing.

3. What specific violation did the ALJ find the Association committed?

The Association violated CC&R section 4.3 by failing to deliver a copy of the budget to the Petitioner at least 15 days before the meeting at which the budget was considered.

4. What was the Association’s defense regarding the timing of the budget notification?

The Association postmarked the budget on January 2, 2019, exactly 15 days before the meeting; however, the law requires delivery, not just mailing, by that deadline.

5. Did the dues increase of 10% require a vote from the membership?

No. Dues increases of up to 10% do not require approval of the membership under the Association's governing documents.

6. What was the final remedy awarded to the Petitioner?

The Petitioner was deemed the prevailing party, and the Association was ordered to reimburse his $500 filing fee.

Essay Prompts for Deeper Exploration

1. The Distinction Between Mailing and Delivery in Contractual Obligations Analyze the ALJ’s interpretation of CC&R section 4.3. Discuss why the postmark date of January 2nd was insufficient to meet a "fifteen-day delivery" requirement for a meeting held on January 17th. How does this distinction affect how Homeowners Associations should manage their administrative timelines?

2. Remedies and Limits of Administrative Authority The Petitioner requested that the 2019 dues increase be rescinded and a civil penalty be issued. However, the ALJ denied these requests despite finding a violation. Based on the source context, explore the potential reasons why the procedural violation regarding the budget delivery did not automatically invalidate the dues increase itself.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who presides over hearings and adjudicates disputes involving government agencies (in this case, the Office of Administrative Hearings).
CC&Rs Covenants, Conditions, and Restrictions; the governing documents and rules that constitute a contract between a Homeowners Association and its members.
Filing Fee The cost paid by a petitioner to initiate a legal matter. In this case, the fee was $500.00.
Fiscal Year The 12-month period used by the Association for budgeting and financial reporting.
Preponderance of the Evidence The standard of proof where the evidence is of "superior evidentiary weight" and more "convincing" than the opposing evidence.
Prevailing Party The party in a lawsuit or legal proceeding who succeeds on the main issues.
Petitioner The party who brings a legal petition or complaint to the tribunal (Michael J. Stoltenberg).
Respondent The party against whom a legal action is brought (Rancho Del Oro Homeowners Association).
Rescinded To cancel, revoke, or repeal a decision or agreement.

The "Delivery" Deadline: Lessons in HOA Transparency from Stoltenberg v. Rancho Del Oro

1. Introduction: When Procedure Meets Property Rights

For many homeowners, the relationship with their Homeowners Association (HOA) is a balancing act between community standards and personal property rights. However, as any seasoned legal analyst will tell you, this relationship is governed strictly by contract law. When a Board fails to adhere to the procedural requirements of its own governing documents, it risks not only community trust but also a formal administrative remedy.

The case of Michael J. Stoltenberg vs. Rancho Del Oro Homeowners Association stands as a pivotal cautionary tale. It demonstrates that even when an Association acts in good faith to announce a dues increase, a single procedural oversight regarding the definition of the word "delivered" can result in a legal defeat. This post analyzes how a $500 filing fee refund turned on the precise timing of a budget distribution.

2. The Dispute: A Question of Timing

In early 2019, Petitioner Michael J. Stoltenberg challenged the Rancho Del Oro Homeowners Association following a budget meeting that resulted in an assessment increase. While Mr. Stoltenberg’s initial petition alleged a wide array of violations—including CC&Rs 1.8, 1.9, 2.1, 3.1, and various parts of Article 4—he ultimately employed a focused legal strategy, narrowing his claim to a single, provable issue of procedural non-compliance.

The conflict centered on the following facts:

  • The Annual Meeting: Conducted on January 17, 2019.
  • The Assessment Change: A 10% increase, raising monthly dues to $154.
  • The Regulatory Conflict: CC&R Section 4.3, which mandates specific timelines for budget distribution.

The Petitioner’s primary allegation was that the Association committed a contractual breach by failing to deliver the 2019 budget within the mandatory 15-day window prior to the meeting.

3. The Legal Threshold: CC&R Section 4.3 Analyzed

The Association’s obligations were not mere suggestions; they were contractual mandates. The Board's failure to distinguish between "mailing" and "delivery" created the grounds for the dispute.

Legal Spotlight: CC&R Section 4.3 Requirements Under the Association’s governing documents, the Board has two distinct temporal duties: 1. Preparation Duties: The Board must prepare a budget at least 60 days before the fiscal year and at least 30 days before the meeting at which it is presented. 2. Delivery Duties: The Board "shall cause a copy of the budget and the amount of the assessments… to be delivered to each unit owner at least fifteen days prior to that meeting."

The Association, represented by the testimony of Diana Crites of Crites Property Management, argued that they had fulfilled their duty by informing members of the increase in November 2018 and mailing the budget on January 2, 2019. However, the legal standard for "delivery" is not met by the mere act of placing an item into the stream of transit.

4. The ALJ’s Decision: Mailing is Not Delivery

Administrative Law Judge (ALJ) Thomas Shedden applied the Preponderance of the Evidence standard to this matter. As defined in Black’s Law Dictionary, this is "the greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

The ALJ’s logic focused on the "15-day math." If a meeting is held on the 17th, and the document is mailed on the 2nd, it is physically and legally impossible for the document to be "delivered" (received) on that same day.

HOA's Position The ALJ's Ruling Legal Logic
The Association mailed the budget on January 2, 2019, exactly 15 days prior to the meeting. Mailing on the deadline day is insufficient to satisfy a delivery requirement. "Delivery" implies receipt. Because the document was in transit on the 15th day, it was not delivered "at least 15 days prior."

The Verdict: The ALJ ruled that the Association violated Section 4.3. As a result, the Association was ordered to pay Mr. Stoltenberg $500 to reimburse his filing fee—effectively shifting the cost of litigation to the non-compliant Association.

5. Nuance in the Verdict: Limits to Homeowner Remedies

While the Petitioner secured a victory on the procedural point, the ruling highlights the limitations of administrative remedies. Homeowners should note that a procedural "win" does not always result in a total reversal of Association policy:

  1. Dues Increase Upheld: Because the 10% increase did not exceed the threshold requiring membership approval under the CC&Rs, the ALJ did not rescind the increase. The $154 monthly rate remained valid.
  2. No Civil Penalties: The ALJ determined that while a violation of the CC&Rs occurred, the circumstances did not warrant additional punitive civil penalties beyond the reimbursement of the filing fee.
6. Final Takeaways for Homeowners and Boards

The Stoltenberg case offers three high-impact lessons for community governance:

  • For Boards: Delivery Means Receipt. If governing documents require "delivery" by a specific deadline, mailing the document on that day is a breach of contract. Boards and management companies—such as Crites Property Management in this instance—must account for postal transit times to ensure documents are in the homeowners' hands by the deadline.
  • For Homeowners: Document Everything. Mr. Stoltenberg’s case was won on evidence, not just anecdotally. His presentation of the January 2nd postmark on the envelope was the pivotal "smoking gun" that proved the Association's timeline was flawed.
  • For Both: Contracts Matter. This ruling reinforces the precedent set in Johnson v. The Pointe Community Association (205 Ariz. 485), which establishes that CC&Rs are binding contracts. Tribunals are legally bound to give effect to the clear and unambiguous terms of these documents. Procedural transparency is a contractual obligation, not a courtesy.
7. Conclusion: The Value of Accountability

The Stoltenberg v. Rancho Del Oro decision serves as a vital reminder that in the world of HOAs, details matter. While the Association had notified members of the increase as early as November, their failure to strictly adhere to the 15-day delivery window for the final budget resulted in a financial penalty and a formal finding of violation. Ultimately, strict adherence to procedural deadlines is the only way for a Board to insulate itself from the costs and scrutiny of administrative litigation.

Case Participants

Petitioner Side

  • Michael J. Stoltenberg (petitioner)
    Appeared on his own behalf

Respondent Side

  • Nicole Payne (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Diana Crites (witness)
    Crites Property Management
    Testified for the Association
  • Lydia A. Peirce Linsmeier (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Listed in transmission block

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmitted order
  • F. Del Sol (clerk/staff)
    Office of Administrative Hearings
    Signed the transmission of the order

Marc D Archer v. PMPE Community Association, Inc.

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Case Summary

Case ID 19F-H1919063-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-03
Administrative Law Judge Velva Moses-Thompson
Outcome The ALJ ruled in favor of the Respondent (HOA) and dismissed the petition. The HOA's rejection of the flat roof design was found to be reasonable and consistent with the architectural rules requiring pitched roofs to predominate and designs to be harmonious with surrounding structures.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Marc D. Archer Counsel —
Respondent PMPE Community Association, Inc. Counsel Nichols C. Hogami

Alleged Violations

A.R.S. § 33-1817(3)

Outcome Summary

The ALJ ruled in favor of the Respondent (HOA) and dismissed the petition. The HOA's rejection of the flat roof design was found to be reasonable and consistent with the architectural rules requiring pitched roofs to predominate and designs to be harmonious with surrounding structures.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the HOA violated the statute; the evidence showed the HOA's decision was based on valid architectural rules.

Key Issues & Findings

Unreasonable withholding of architectural approval

Petitioner sought approval for a garage addition with a flat roof. The Board denied final approval because the design was not harmonious with surrounding structures (pitched roofs) and did not meet the exception for hidden flat roofs.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1817(3)
  • A.R.S. Title 32, Ch. 20, Art. 11
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

19F-H1919063-REL Decision – 733775.pdf

Uploaded 2026-04-24T11:20:41 (86.0 KB)

19F-H1919063-REL Decision – 733775.pdf

Uploaded 2026-01-27T21:16:55 (86.0 KB)

Administrative Law Judge Decision: Archer v. PMPE Community Association, Inc.

Executive Summary

This document provides a detailed briefing on the administrative hearing between Petitioner Marc D. Archer and Respondent PMPE Community Association, Inc. (Case No. 19F-H1919063-REL). The dispute centered on the Petitioner's proposal to construct a garage addition with a flat roof, which the Association Board declined to approve in its final form.

The Petitioner alleged that the Association unreasonably withheld approval in violation of Arizona Revised Statutes (A.R.S.) § 33-1817(3), arguing that the design was harmonious and that the Association’s enforcement of rules was arbitrary and discriminatory. The Association maintained that its governing documents—specifically the Covenants, Conditions, and Restrictions (CC&Rs) and Architectural Rules—prioritize pitched roofs and visual harmony with surrounding structures.

On September 3, 2019, Administrative Law Judge Velva Moses-Thompson ruled in favor of the PMPE Community Association, dismissing the petition. The Judge concluded that the Petitioner failed to prove by a preponderance of the evidence that the Association acted unreasonably or violated statutory requirements.

Analysis of Key Themes

1. Architectural Harmony and Structural Consistency

The primary conflict arose from the discrepancy between the Petitioner's proposed design and the existing aesthetic of the community. While the Petitioner’s residence already featured a pitched roof on the existing garage, his plan for the addition utilized a flat roof.

  • Respondent’s Position: The Association argued that pitched roofs are a fundamental component of the community's visual environment and must predominate.
  • Petitioner’s Position: Archer argued the flat roof was harmonious because it mirrored a pitched roof/flat patio combination on the opposite side of his home.
  • Legal Finding: The judge found that the Association’s insistence on a pitched roof was reasonable, as the proposed flat roof was inconsistent with the existing structures, including Archer's own pitched garage roof.
2. The "Visible From Neighboring Property" Standard

A critical point of contention was whether the proposed addition violated visibility standards set forth in CC&R 1.34.

  • The 9-Foot Threshold: The adjoining wall was 9 feet tall. The Petitioner’s proposed flat roof would exceed this height.
  • The Visibility Rule: Under CC&R 1.34, an object is "visible from neighboring property" if it can be seen by a person six feet tall standing at ground level on an adjoining lot or common area. However, objects in a backyard that do not exceed the height of the enclosing wall are exempt from this definition.
  • Association's Compromise: The Board indicated it would allow a flat roof only if its height remained below the adjacent wall to ensure it was not visible from neighboring properties.
3. Allegations of Arbitrary Enforcement

The Petitioner attempted to demonstrate that the Association enforced CC&Rs inconsistently. He cited instances where other homeowners allegedly:

  • Kept a kitchen countertop in a front yard for nearly a year.
  • Constructed patio additions that were purportedly not harmonious with surrounding structures.
  • Kept a cart on their property longer than allowed.

The Association denied these claims, asserting consistent enforcement. Ultimately, the court found the Petitioner's evidence insufficient to prove that the Association’s specific decision regarding his garage was discriminatory or arbitrary.

4. Statutory and Contractual Compliance

The decision reinforced the legal standing of CC&Rs as contracts.

  • A.R.S. § 33-1817(3): This statute prohibits associations from "unreasonably" withholding approval of architectural plans.
  • Contractual Obligation: Citing Johnson v. The Pointe Community Association, the ruling noted that CC&Rs are contracts and all parties are required to comply with their terms.
  • Burden of Proof: The Petitioner held the burden of proof to show a violation by a "preponderance of the evidence." The court defined this as the "greater weight of the evidence" or "evidence that has the most convincing force."

Important Quotes and Context

Quote Context
"“Visible From Neighboring Property” means… that such object is or would be visible to a person six feet tall, standing at ground level on any part of the adjoining Lot or Common Area." CC&R 1.34 Definition: Establishes the objective physical standard used to determine if a structure infringes on the community's visual environment.
"Since roofscapes will form an important part of the visual environment, they must be carefully designed. It is intended that pitched roofs predominate." PMPE Architectural Rules Section 4.4: The specific guideline the Board used to justify requiring a pitched roof instead of a flat one.
"The Board… may promulgate architectural design, with particular regard to the harmony of the design with the surrounding structures and topography." CC&R Article 5.10: Grants the Board the legal authority to judge the "harmony" of a project, which was central to their rejection of Archer's plans.
"Mr. Archer failed to prove by a preponderance of the evidence that PMPE violated A.R.S. § 33-1817(3)." Conclusion of Law: The final determination that the Petitioner's arguments regarding unreasonable withholding of approval were legally insufficient.

Actionable Insights for Stakeholders

For Homeowners’ Associations (HOAs)
  • Maintain Clear Definitions: The use of specific measurements (e.g., the "six-foot tall person" standard in CC&R 1.34) provides a defensible, objective basis for architectural decisions.
  • Document "Harmony": When rejecting a plan based on "harmony with surrounding structures," associations should point to specific existing architectural features (like pitched roofs) that the proposal contradicts.
  • Offer Conditional Approvals: The Board’s willingness to allow the flat roof if it remained below the wall height demonstrated a reasonable attempt at compromise, which likely supported their "reasonable" standing in court.
For Homeowners
  • Align with Predominant Features: If governing documents state that a certain style (like pitched roofs) must "predominate," proposing a different style for a large addition carries a high risk of rejection.
  • Understand the Burden of Proof: In administrative hearings regarding A.R.S. § 33-1817(3), the homeowner must provide "convincing force" that the Board's decision was unreasonable. Simply pointing to other minor violations in the neighborhood (like a countertop in a yard) may not be enough to prove discriminatory enforcement regarding structural additions.
  • Review Visibility Restrictions: Before designing additions, homeowners should measure existing perimeter walls, as these often serve as the height limit for structures to remain exempt from "Visible From Neighboring Property" restrictions.

Archer v. PMPE Community Association: Administrative Law Case Study

This study guide provides a comprehensive overview of the administrative hearing between Marc D. Archer and the PMPE Community Association, Inc. (No. 19F-H1919063-REL). It covers the legal standards, architectural regulations, and the specific findings of fact that led to the dismissal of the petitioner's claim regarding homeowners' association (HOA) architectural approvals.

Key Concepts and Legal Principles

1. Architectural Standards and Harmony

Under the PMPE CC&Rs and Architectural Rules, specific design principles govern modifications to residences.

  • Predominance of Pitched Roofs: According to Architectural Rule 4.4, pitched roofs are intended to predominate because roofscapes form a vital part of the visual environment.
  • Design Harmony: Article 5.10 grants the Board or Architectural Committee the authority to evaluate designs based on their harmony with surrounding structures and topography.
  • Flat Roof Requirements: While flat roofs are permitted in some instances (such as patio areas), they must have parapets. In this case, the Board allowed a flat roof only if it remained below the height of the adjacent wall to ensure it was not visible from neighboring properties.
2. "Visible From Neighboring Property"

CC&R 1.34 establishes a specific objective standard for determining visibility:

  • The Six-Foot Standard: An object is considered visible if it can be seen by a person six feet tall standing at ground level on any part of an adjoining lot or common area.
  • The Wall Exception: Objects in a backyard enclosed by a wall are not deemed "visible" if they do not exceed the height of that wall. In this case, the wall height was established at 9 feet.
3. Legal Standards of Proof and Authority
  • Jurisdiction: The Arizona Department of Real Estate (ADRE) has authority over these matters pursuant to A.R.S. Title 32, Ch. 20, Art. 11.
  • Statutory Restriction (A.R.S. § 33-1817(3)): An association is legally prohibited from "unreasonably" withholding approval of architectural plans.
  • Preponderance of the Evidence: This is the standard of proof required at the hearing. It is defined as the "greater weight of the evidence" or evidence that possesses the most "convincing force," inclining an impartial mind toward one side of the issue.
  • Contractual Nature of CC&Rs: In Arizona, CC&Rs are viewed as a contract between the parties. If the terms are clear and unambiguous, they must be enforced to give effect to the intent of the parties.

Short-Answer Practice Questions

1. What was the specific height of the adjoining wall in the Archer residence dispute?

The adjoining wall was 9 feet high.

2. According to CC&R 1.34, how is a person's height and position defined when determining if an object is "Visible From Neighboring Property"?

The person is defined as being six feet tall and standing at ground level on any part of the adjoining Lot or Common Area.

3. What was the Board’s primary reason for refusing final approval of Mr. Archer’s garage addition?

The Board learned that the addition would have a flat roof enclosed on all sides with a height exceeding the 9-foot adjoining wall, making it visible from neighboring properties.

4. What does A.R.S. § 33-1817(3) stipulate regarding an HOA’s power over construction plans?

It stipulates that an association shall not unreasonably withhold approval of a construction project’s architectural plans.

5. How does PMPE Architectural Rule 4.4 describe the preferred style for roofs?

It states that roofscapes are an important part of the visual environment and that it is intended for pitched roofs to predominate.

6. On what grounds did Mr. Archer argue that the Board's enforcement of the CC&Rs was "arbitrary and discriminatory"?

He contended that the Board allowed other homeowners to have non-harmonious patio additions, a kitchen countertop in a front yard for nearly a year, and a cart for longer than allowed.

Essay Prompts for Deeper Exploration

1. The Balance of Reasonableness in HOA Governance

A.R.S. § 33-1817(3) prohibits an HOA from "unreasonably" withholding approval. Analyze the Board's decision in Archer v. PMPE through the lens of this statute. Consider whether the Board's willingness to allow a flat roof only if it remained below the wall height constitutes a reasonable compromise or an arbitrary restriction, given the neighborhood's preference for pitched roofs.

2. Consistency and Selective Enforcement

Mr. Archer alleged that the HOA practiced arbitrary and discriminatory enforcement by highlighting violations by other residents (e.g., the kitchen countertop and carts). Discuss the legal challenge of proving selective enforcement in an administrative hearing. Why did the Administrative Law Judge find these arguments insufficient to prove that the Board violated the law in Mr. Archer's specific case?

3. Contractual Interpretation of CC&Rs

Arizona law treats CC&Rs as contracts. Explore the implications of this classification. If a CC&R clearly defines a term like "Visible From Neighboring Property," to what extent does the Board have discretion to deviate from that definition? Discuss how the "unambiguous" nature of the PMPE CC&Rs influenced the Judge's final decision.

Glossary of Important Terms

Term Definition
A.R.S. § 33-1817(3) The Arizona Revised Statute that prevents HOAs from unreasonably withholding architectural plan approvals.
Administrative Law Judge (ALJ) The presiding official (in this case, Velva Moses-Thompson) who hears evidence and issues a decision in administrative disputes.
CC&Rs Covenants, Conditions, and Restrictions; the legal governing documents that dictate the rules and residents' obligations within a community.
Harmony of Design A criteria used by the Board to ensure that new construction matches the existing aesthetics and topography of surrounding structures.
Parapet A low protective wall along the edge of a roof; required for all flat roof patio areas under PMPE Architectural Rules.
Pitched Roof A sloping roof; the architectural style that the PMPE rules state should "predominate" in the community.
Preponderance of the Evidence The legal standard of proof requiring that a claim is more likely to be true than not (the "greater weight" of evidence).
Respondent The party against whom a petition is filed; in this case, PMPE Community Association, Inc.
Visible From Neighboring Property An object visible to a six-foot person at ground level on an adjoining lot; objects below the height of a backyard wall are exempt.

Roof Wars: Lessons in HOA Architectural Compliance and Community Standards

1. Introduction: The Conflict Under the Eaves

For homeowners, the boundary between personal property rights and community governance is often defined by the roofline. While a property owner may view a garage addition as a functional necessity, a Homeowners Association (HOA) views that same structure through the lens of aesthetic uniformity and "harmony of design." This tension is the focal point of Marc D. Archer vs. PMPE Community Association, Inc. (No. 19F-H1919063-REL), a case that highlights the legal complexities of architectural compliance.

The core dispute involved a homeowner’s attempt to construct a flat-roof garage addition in a community where pitched roofs are the mandated standard. This case provides a critical look at how administrative courts evaluate "reasonableness" and the high evidentiary bar homeowners must clear when alleging arbitrary enforcement by a Board.

2. The Project and the Initial Denial

Upon review of the Findings of Fact, the dispute began in September 2017 when the Petitioner, Mr. Archer, submitted plans for a garage addition to the Respondent, the PMPE Board. While the Board initially issued a preliminary approval, they withheld final authorization after a detailed review revealed that the proposed structure deviated from the community's architectural standards.

The proposed addition included the following specifications:

  • Roof Style: A flat roof design, enclosed on all sides.
  • Height: A structure reaching a height that would exceed the 9-foot adjoining wall.
  • Visual Relationship: The new flat roof would be physically attached to the Petitioner’s existing garage, which featured an arched/pitched roof.

Critically, the Board did not issue a blanket denial. In an attempt at compromise, the Board notified the Petitioner that the flat roof would be acceptable if—and only if—the height remained below the adjacent wall. This would have utilized the visibility exception in the CC&Rs. However, the Petitioner insisted on a height exceeding the wall, leading to the final denial and subsequent legal challenge.

3. Defining "Visible From Neighboring Property"

The legal pivot point of this case rests on the definition of visibility. If a structure is "visible," it is subject to the full weight of the HOA’s architectural guidelines.

Terms to Know: "Visible From Neighboring Property" Under PMPE CC&R 1.34, an object is "Visible From Neighboring Property" if it can be seen by a six-foot-tall person standing at ground level on any portion of an adjoining lot or common area. The Exception: An object located in a backyard enclosed by a wall is not deemed visible if it does not exceed the height of the wall enclosing that backyard. This "wall height" standard is a safe harbor for homeowners, but once a structure rises above that line, it falls under Board jurisdiction for aesthetic harmony.

4. The Homeowner's Challenge: Claims of Arbitrary Enforcement

The Petitioner challenged the denial under A.R.S. § 33-1817(3), asserting that the Board was unreasonably withholding approval. He presented three primary arguments to the Administrative Law Judge (ALJ):

  1. Harmony of Design: The Petitioner argued the flat roof was harmonious because it mirrored the opposite side of his home, which featured a pitched roof adjacent to a flat-top patio.
  2. Inconsistent Enforcement: He alleged that the HOA was targeting him while ignoring violations by other neighbors, thereby acting in an arbitrary and discriminatory manner.
  3. Specific Examples of Non-Compliance: To support the claim of inconsistency, he cited "whataboutism" examples, such as a neighbor keeping a kitchen countertop in a front yard for a year and others leaving carts in yards past allowable timeframes.
5. The HOA’s Defense: The Predominance of Pitched Roofs

The Respondent argued that the Petitioner's request would violate the fundamental "roofscape" of the community. Their defense was rooted in the specific technical requirements of the governing documents:

HOA Rule/Article Specific Design Requirement
Article 5.10 Grants the Board/Architectural Committee authority to promote design with particular regard to harmony with surrounding structures and topography.
Section 4.4 (Architectural Rules) Establishes that roofscapes are vital to the visual environment; it is mandated that pitched roofs predominate.
Section 4.4 (Technical Specs) Pitched roofs must be hipped whenever possible and maintain a maximum slope of five to 12 feet (5’ to 12’).
Section 4.4 (Flat Roofs) While flat roofs are generally discouraged, all flat roof patio areas must have parapets.

The Respondent emphasized that since the Petitioner’s existing garage featured a pitched roof, an attached flat-roof addition would create a jarring architectural disconnect.

6. The Administrative Decision: Why the HOA Prevailed

Administrative Law Judge Velva Moses-Thompson applied the "Preponderance of the Evidence" standard, as required by Arizona Administrative Code R2-19-119. Under this standard, the Petitioner must prove their case with "the greater weight of the evidence"—meaning the evidence must be more than 50% convincing. In administrative law, a "tie" or a 50/50 split in evidence means the Petitioner has failed to meet their burden, and the HOA prevails.

The ALJ's ruling for the Respondent was based on two key legal conclusions:

  • Reasonableness of the Board: The Board’s decision was deemed reasonable under A.R.S. § 33-1817(3) because the rules explicitly prioritize pitched roofs. The Board's offer of a compromise (keeping the roof below wall height) further demonstrated a lack of malice or unreasonableness.
  • The Failure of "Whataboutism": The judge dismissed the Petitioner’s claims regarding kitchen countertops and yard carts. Legally, the failure to enforce minor maintenance or "clutter" rules does not waive an HOA's right to enforce major, permanent structural and architectural standards. Structural harmony is a distinct legal tier from temporary yard maintenance.
7. Conclusion: 4 Essential Takeaways for Homeowners

The dismissal of the Petitioner’s case provides a roadmap for navigating architectural disputes in Arizona:

  • Understand the "Harmony" Clause: Architectural harmony is not just about matching your neighbors; it is about matching the existing structures on your own lot. As established in Johnson v. The Pointe Community Association, CC&Rs are binding contracts. If your home is designed with pitched roofs, a flat-roof addition is a difficult legal sell.
  • The Visibility Standard: Your "building rights" are often tied to the height of your perimeter wall. If a structure exceeds the wall height and becomes visible to a six-foot-tall neighbor, you lose the "safe harbor" protection and must strictly adhere to architectural design rules.
  • The Petitioner’s Burden of Proof: In an administrative hearing, the homeowner carries the heavy lifting. You must prove the Board is being unreasonable. Per Arizona Administrative Code R2-19-119, if the evidence is only equally balanced, the homeowner loses.
  • Contractual Obligations: Arizona courts, following cases like Powell v. Washburn, treat CC&Rs as unambiguous contracts. Judges will prioritize the clear terms of the document—such as "pitched roofs shall predominate"—to protect the original intent of the community's design.

Homeowners should meticulously review their association's specific "Architectural Rules" before finalizing designs, as these documents often contain technical specifications—like roof slope and parapet requirements—that are just as binding as the CC&Rs themselves.

Case Participants

Petitioner Side

  • Marc D. Archer (petitioner)
    PMPE Community Association, Inc. (Member)
    Appeared on behalf of himself; testified

Respondent Side

  • Nichols C. Hogami (respondent attorney)
    Appeared on behalf of Respondent
  • Keith Scott Kauffman (witness)
    PMPE Board of Directors
    Member of the PMPE Board of Directors; testified

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmitted order

Myron H Colvin vs. Tierra Del Sol RV Resort Association

Posted on by

Case Summary

Case ID 19F-H19190064-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-27
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition. The Petitioner failed to meet the burden of proof to establish that the HOA violated the CC&Rs. The ALJ ruled that the Tribunal did not have jurisdiction to issue a declaratory judgment regarding the Petitioner's request to determine if his own actions constituted a violation.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Myron H. Colvin Counsel —
Respondent Tierra Del Sol RV Resort Association Counsel Nicholas Nogami

Alleged Violations

CC&R § 4.3

Outcome Summary

The Administrative Law Judge dismissed the petition. The Petitioner failed to meet the burden of proof to establish that the HOA violated the CC&Rs. The ALJ ruled that the Tribunal did not have jurisdiction to issue a declaratory judgment regarding the Petitioner's request to determine if his own actions constituted a violation.

Why this result: Failure to prove HOA violation; lack of jurisdiction for declaratory judgment.

Key Issues & Findings

Dispute over lot setbacks and paver installation violation notice

Petitioner installed concrete pavers in his lot's setback area. The HOA issued a Notice of Violation stating the pavers violated CC&R § 4.3 because they were not small enough to be moved by one person. Petitioner argued he had approval and sought a hearing regarding the alleged violation. The ALJ found Petitioner failed to prove the HOA violated the CC&Rs.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Video Overview

Audio Overview

Decision Documents

19F-H19190064-REL Decision – 733836.pdf

Uploaded 2026-04-24T11:18:46 (83.2 KB)

19F-H19190064-REL Decision – 733836.pdf

Uploaded 2026-01-27T21:16:06 (83.2 KB)

Administrative Law Briefing: Colvin v. Tierra Del Sol RV Resort Association

Executive Summary

This briefing examines the administrative law decision in the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association (No. 19F-H19190064-REL). The dispute arose when the Tierra Del Sol RV Resort Association (the Association) issued a Notice of Violation to Mr. Colvin regarding the installation of concrete pavers within the setback area of his lot.

The primary legal question concerned whether the pavers complied with the community’s Covenants, Conditions, and Restrictions (CC&Rs) § 4.3, which requires improvements in setback areas to be movable by one person without mechanical assistance. While Mr. Colvin sought a determination that he had not violated the CC&Rs, the Administrative Law Judge (ALJ) dismissed the petition. The ruling was based on two factors: the Petitioner’s failure to prove that the Association itself violated the CC&Rs and the tribunal’s lack of jurisdiction to issue a declaratory judgment regarding an owner’s compliance status.

Case Overview

Feature Details
Case Name Myron H. Colvin v. Tierra Del Sol RV Resort Association
Case Number 19F-H19190064-REL
Hearing Date August 7, 2019
Administrative Law Judge Velva Moses-Thompson
Petitioner Myron H. Colvin (Self-represented)
Respondent Tierra Del Sol RV Resort Association (Represented by Nicholas Nogami, Esq.)
Final Order Petition Dismissed

Detailed Analysis of Key Themes

1. Interpretation of CC&R Section 4.3 (Lot Setbacks)

The central technical conflict involves the definition of allowable improvements within designated setback areas. Per the Association’s CC&Rs, setbacks are defined as:

  • Front: Five (5) feet.
  • Sides: Three (3) feet.
  • Rear: Three (3) feet.

Section 4.3 explicitly prohibits permanent or temporary structures, improvements, or vehicles (excluding golf carts and car dollies) in these areas. The only exception is for landscaping features, provided they can be "moved by one person unassisted by mechanical devices."

The dispute focused on whether Mr. Colvin’s concrete pavers met this "movability" requirement. The Association alleged the pavers were too large for manual removal, whereas Mr. Colvin contended the Association had previously approved his plan to cut the pavers into 3 x 5 ft pieces.

2. Procedural Burden of Proof

Under Arizona law (A.R.S. § 41-1092.07(G)(2)), the Petitioner bears the burden of proof to establish a violation by a preponderance of the evidence. This standard requires the Petitioner to prove that their contention is "more probably true than not."

In this matter, the ALJ found that Mr. Colvin failed to meet this burden. Rather than proving the Association violated the CC&Rs, Mr. Colvin focused his arguments on defending his own actions. The ALJ noted that the Association can only be found in violation if it, as an entity, placed an unapproved object or improvement in a setback area—an allegation Mr. Colvin did not make.

3. Jurisdictional Limitations of the OAH

A critical theme in the decision is the distinction between a violation hearing and a request for a declaratory judgment. While the Arizona Department of Real Estate (DRE) has jurisdiction over violations of planned community documents (A.R.S. § 32-2199(B)), that jurisdiction is specific.

The ALJ concluded that the tribunal did not have the authority to grant a "declaratory judgment." Mr. Colvin was essentially asking the court to declare that he was not in violation of the rules. The OAH determined it lacks the legal jurisdiction to provide such a determination for a homeowner seeking to pre-emptively clear their own record of a violation notice.

Important Quotes with Context

On the Definition of Setback Restrictions

"Each Lot shall be subject to a setback area… No permanent or temporary structures, improvements (other than landscaping)… shall be located within such setback area… [any] Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, [shall not] encroach on or overhang any area designated in this Declaration as a lot setback."

— CC&R § 4.3 (as cited in Finding of Fact #13)

Context: This quote establishes the specific criteria that led to the Notice of Violation. It defines the strict limitations on what may occupy the three-to-five-foot perimeter of a lot.

On the Burden of Evidence

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not… superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."

— Conclusion of Law #3

Context: The ALJ uses this definition to explain the standard Mr. Colvin failed to meet when attempting to challenge the Association's actions.

On the Scope of the Tribunal’s Authority

"To the extent that Mr. Colvin is requesting a declaratory judgment regarding his alleged violation, this tribunal does not have jurisdiction to make such a determination."

— Conclusion of Law #5

Context: This serves as the primary legal basis for the dismissal. It clarifies that the Office of Administrative Hearings is not empowered to issue rulings that merely validate a homeowner's compliance to satisfy an internal HOA dispute.

Actionable Insights

For Homeowners in Planned Communities
  • Clarification of Approval: Even if an Association approves a request for an improvement (as they did twice for Mr. Colvin), the final installation must strictly adhere to the specific text of the CC&Rs. Approval of a "request to place pavers" does not necessarily override the specific material requirements (such as weight and movability) found in the governing documents.
  • Understanding the Petitioner's Role: When filing a petition with the Department of Real Estate, the homeowner must prove that the Association violated the rules. Defending one's own actions against a notice of violation may not be sufficient grounds for an administrative hearing if the Association's own conduct remains within its legal authority.
For Association Boards and Management
  • Enforcement Authority: The decision reinforces that A.R.S. § 33-1803 authorizes associations to enforce CC&Rs. Providing specific remediation steps in a Notice of Violation (e.g., "cutting the concrete… into small 100 pound sections") helps demonstrate that the Association is acting in accordance with its governing documents.
  • Jurisdictional Defense: Associations facing similar petitions can successfully argue for dismissal if the Petitioner is seeking a declaratory judgment of their own compliance rather than proving a specific breach of duty by the Association.
Legal Recourse and Rehearing
  • Time Sensitivity: Parties dissatisfied with an Administrative Law Judge's decision have a strictly defined window of 30 days from the service of the Order to file a request for a rehearing with the Commissioner of the Department of Real Estate (pursuant to A.R.S. § 41-1092.09).

Study Guide: Colvin v. Tierra Del Sol RV Resort Association

This study guide provides a comprehensive overview of the administrative hearing between Myron H. Colvin (Petitioner) and the Tierra Del Sol RV Resort Association (Respondent). It explores the factual background, legal standards, and the final decision rendered by the Office of Administrative Hearings.

I. Case Background and Timeline

The dispute centers on the installation of concrete pavers in a lot's setback area and the interpretation of the community's governing documents.

  • Initial Request (March 2018): Myron H. Colvin submitted a request to Tierra Del Sol to install concrete pavers in the setback area of his lot. This was approved, but the project was delayed because Colvin left the state.
  • Second Request (March 2019): Colvin submitted a second request for the same project, which was also approved by the Association.
  • Notice of Violation (May 8, 2019): After installation, Tierra Del Sol issued a notice alleging a violation of Covenants, Conditions, and Restrictions (CC&Rs) § 4.3. The Association claimed the pavers were too large to be moved by one person without mechanical assistance.
  • Proposed Remedies: The Association suggested Colvin could correct the violation by removing the concrete or cutting it into small sections weighing approximately 100 pounds.
  • Legal Action: On May 10, 2019, Colvin filed a petition with the Arizona Department of Real Estate (DRE). An evidentiary hearing was held on August 7, 2019.

II. Key Legal Concepts and CC&R Interpretation

CC&R Section 4.3: Lot Setbacks

The central regulation in this case defines the restricted areas of a lot and the types of items permitted within them:

  • Setback Dimensions: 5 feet across the front; 3 feet on both sides; 3 feet at the rear.
  • Prohibited Items: Permanent or temporary structures, improvements (except landscaping), vehicles (except golf carts and car dollies), Park Models, or Recreational Vehicles.
  • The "One Person" Rule: Landscaping features are only permitted in the setback if they can be moved by one person unassisted by mechanical devices.
Legal Standards and Burden of Proof

The case was governed by the following legal principles:

  • Jurisdiction: Arizona Revised Statutes (A.R.S.) § 32-2199(B) grants the Department of Real Estate authority over violations of planned community documents.
  • Burden of Proof: The Petitioner (Colvin) bears the burden of establishing that the Respondent (Association) violated the CC&Rs by a preponderance of the evidence.
  • Restrictive Covenants: In Arizona, unambiguous covenants are enforced to reflect the intent of the parties and must be construed as a whole, giving effect to all provisions.

III. Short-Answer Practice Questions

1. According to CC&R § 4.3, what are the specific dimensions of the setback areas for a lot?

Answer: The setback areas consist of five feet across the front and three feet on both sides and the rear.

2. Why did Tierra Del Sol allege that the concrete pavers violated the CC&Rs?

Answer: The Association alleged the pavers were not small enough to be removed by one person without the assistance of a mechanical device, as required for improvements in the setback area.

3. What specific weight did the Association suggest for the concrete sections to bring them into compliance?

Answer: The Association advised cutting the concrete into small 100-pound sections.

4. What is the definition of "preponderance of the evidence" used by the tribunal?

Answer: It is proof that convinces the trier of fact that a contention is "more probably true than not," or evidence that has the "most convincing force."

5. Why was Myron Colvin’s petition ultimately dismissed?

Answer: Colvin failed to establish that the Association violated Section 4.3. Additionally, the tribunal lacked jurisdiction to provide a declaratory judgment on whether Colvin himself had violated the CC&Rs.

IV. Essay Prompts for Deeper Exploration

  1. Analysis of the Burden of Proof: Explain the legal significance of the "Petitioner bears the burden of proof." In the context of this case, why did the Administrative Law Judge find that Mr. Colvin failed to meet this burden even though he was the one who received a notice of violation?
  2. The Limits of Administrative Jurisdiction: Discuss the distinction between a hearing to determine if a Homeowners Association (HOA) violated its own documents and a request for a "declaratory judgment." Why did the tribunal refuse to rule on whether Colvin was actually in violation of the CC&Rs?
  3. Interpretation of Restrictive Covenants: CC&R § 4.3 includes a clause regarding "landscaping features which can be moved by one person unassisted by mechanical devices." Evaluate how such a clause balances the aesthetic interests of the homeowner with the functional requirements of the Association.

V. Glossary of Important Terms

Term Definition
A.R.S. § 32-2199(B) The Arizona Revised Statute that permits owners or planned community organizations to file petitions concerning violations of community documents.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for property use within a community.
Declaratory Judgment A legal determination by a court or tribunal that resolves legal uncertainty for the litigants, which the Office of Administrative Hearings ruled it did not have jurisdiction to provide in this specific context.
Improvement Any structure or addition to a lot; under § 4.3, improvements in setbacks are generally restricted unless they are movable landscaping features.
Mechanical Device Any tool or machinery used to assist in moving objects; its use is prohibited for moving items intended to be placed in the setback area under the "one person" rule.
Preponderance of the Evidence The evidentiary standard where a claim is proved if it is shown to be more likely true than not; superior evidentiary weight.
Setback A specific area of a lot (front, side, or rear) where structures and certain improvements are restricted to ensure space between properties or roads.
Tribunal A person or institution (in this case, the Office of Administrative Hearings) with authority to judge, adjudicate on, or determine claims or disputes.

The Weight of Compliance: Lessons from the Tierra Del Sol Setback Dispute

1. When Lot Improvements Meet the Fine Print

For many RV resort enthusiasts, the appeal of a permanent lot lies in the ability to customize. Whether it’s a new awning or a pristine patio, these improvements define the resort lifestyle. However, as one resident at Tierra Del Sol RV Resort recently discovered, there is a significant legal distance between "getting approval" and "being in compliance."

The dispute between homeowner Myron H. Colvin and the Tierra Del Sol RV Resort Association serves as a cautionary tale for all planned community members. At the center of the conflict was a common upgrade—concrete pavers—that led to a Notice of Violation and an administrative hearing. By examining the nuances of this case, we can uncover how specific CC&R technicalities and jurisdictional boundaries determine the outcome of homeowner disputes.

2. From Green Light to Red Tape: The Project Timeline

The path to litigation began with what appeared to be a straightforward request. The timeline reveals a project that was approved twice but ultimately fell short of the community’s literal standards:

  • March 2018: Mr. Colvin submits his first request to the Association to install concrete pavers in his lot's setback area. The Association grants approval.
  • The Intervening Year: The project is stalled when Mr. Colvin leaves the state, preventing the immediate installation of the pavers.
  • March 2019: Upon his return, Mr. Colvin submits a second request for the same project. Once again, the Association issues an approval.
  • May 8, 2019: Shortly after the pavers are finally installed, the Association issues a formal Notice of Violation.

While the project was approved by the Architectural Officer, the execution—specifically the physical size and weight of the installed pavers—was deemed a breach of the community’s governing documents.

3. Decoding Section 4.3: The "One-Person" Rule and the 100-Pound Safe Harbor

The legal core of this dispute is Section 4.3 of the CC&Rs, which governs lot setbacks. Setbacks are designated "no-build" zones (five feet at the front, three feet on the sides and rear) intended to remain clear for utility access and safety.

The exact text of CC&R § 4.3 states:

"…in no event shall any Recreational Vehicle, its slide-out, or any Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback."

To clarify this for members, the Association provided a "Safe Harbor" suggestion: the violation could be remedied if the concrete was cut into sections weighing no more than 100 pounds.

Category Restriction Details
Permitted Landscaping Must be movable by 1 person without tools or mechanical devices (e.g., no dollies, forklifts, or heavy machinery).
Prohibited Structures No sheds, Arizona Rooms, or permanent structures of any kind.
Vehicles & Slide-outs Strictly prohibited from overhanging the setback area.
Specific Exemptions Golf carts and car dollies are permitted.

The Association’s grievance was that Mr. Colvin’s pavers were too large and heavy to be moved by a single person unassisted, effectively turning a "landscaping feature" into a "permanent improvement" prohibited in the setback.

4. The Legal Paradox: Why You Can’t Sue the Board for Your Own Violation

On August 7, 2019, the parties met for an administrative hearing. Mr. Colvin’s defense was built on the fact that he had received prior approval to place pavers cut into 3×5 foot pieces. He argued that because the Association approved the plan, he was not in violation.

However, the Association raised a brilliant, albeit frustrating, legal defense. They argued that under A.R.S. § 32-2199(B), the tribunal only has the authority to hear petitions regarding violations committed by the Association. Since the Association did not place the pavers in the setback—Mr. Colvin did—the Association could not have violated Section 4.3.

This created a procedural wall for the homeowner. In these hearings, the Petitioner (Mr. Colvin) bears the Burden of Proof. He had to establish his case by a Preponderance of the Evidence, meaning he had to prove it was "more probably true than not" that the Association broke a rule. Because the CC&Rs restrict what owners do, not what the Board does, the Petitioner’s argument was fundamentally misplaced.

Furthermore, the Association argued that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a "declaratory judgment." In layperson’s terms, the court is not a consulting firm; it cannot provide a "stamp of approval" or pre-emptive advice to a homeowner looking to overturn a violation notice.

5. The Verdict: Dismissal and the Limits of Jurisdiction

Administrative Law Judge Velva Moses-Thompson ultimately dismissed the petition. The decision rested on two primary Conclusions of Law:

  1. Failure to Establish a Violation by the Respondent: The Petitioner admitted to placing the pavers himself. Therefore, the Association did not violate the restriction against placing objects in the setback.
  2. Lack of Jurisdiction: The tribunal does not have the legal authority to decide whether a member's personal actions constitute a violation when that member is seeking a "second opinion" to challenge a notice.

The final order was issued on August 27, 2019, and transmitted to the Commissioner of the Arizona Department of Real Estate.

6. Key Takeaways: Lessons for Every Resort Member

This case provides essential insights for anyone living under the governance of an HOA or RV resort:

  1. Approval Is Not Absolute: An initial nod from an Architectural Officer is a green light to proceed, but it is not a shield against the literal text of the CC&Rs. If the finished product (e.g., the weight of a paver) violates the written code, the approval is effectively voided by the non-compliant execution.
  2. The Tribunal is Not a "Second Opinion": Administrative hearings are for adjudicating breaches of law by the Association. They are not a venue to seek "declaratory relief" or to ask a judge to tell the Board to leave you alone.
  3. The Burden of Proof is Yours: When you file a petition, you must prove the Association did something wrong. Proving that you followed a plan that later turned out to be a violation is rarely enough to win a case against the Board.
  4. The Hierarchy of Authority: While an Architectural Officer may review your plans, the Board of Directors and the written CC&Rs remain the ultimate authority. Always ensure your project meets the "fine print" standards—like the "one-person" weight limit—before the concrete is poured.

7. Conclusion: The Constant State of Compliance

The Tierra Del Sol dispute highlights a vital truth of resort living: compliance is a constant state, not a one-time event. Obtaining a permit is only the first step; maintaining the project within the technical bounds of the CC&Rs is what prevents a costly legal setback.

The order in this matter became binding upon its issuance. Under Arizona law, any party wishing to challenge such a decision has a 30-day window to file a request for a rehearing with the Commissioner of the Department of Real Estate. For homeowners, the best defense remains a thorough understanding of the "one-person" rule and a cautious approach to the setback line.

Case Participants

Petitioner Side

  • Myron H. Colvin (petitioner)
    Tierra Del Sol RV Resort Association (member)
    Appeared on behalf of himself

Respondent Side

  • Nicholas Nogami (attorney)
    Tierra Del Sol RV Resort Association
    Esq.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmission of order

Sean McCoy v. Barclay Place Homeowners Association

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

Case Summary

Case ID 19F-H1919062-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-27
Administrative Law Judge Tammy L. Eigenheer
Outcome Petitioner prevailed on the claim regarding the failure to provide financial compilations (ISS-002) and was awarded a filing fee refund. Respondent prevailed on claims regarding meeting recordings (ISS-001) and communication restrictions (ISS-003). A rehearing on ISS-003 affirmed the decision in favor of the Respondent.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sean McCoy Counsel —
Respondent Barclay Place Homeowners Association Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1804(A)
A.R.S. § 33-1810
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner prevailed on the claim regarding the failure to provide financial compilations (ISS-002) and was awarded a filing fee refund. Respondent prevailed on claims regarding meeting recordings (ISS-001) and communication restrictions (ISS-003). A rehearing on ISS-003 affirmed the decision in favor of the Respondent.

Why this result: Petitioner failed to prove violations regarding meeting recordings (as the Board provided recordings) and communication restrictions (as the Board may manage communication channels for onerous requests).

Key Issues & Findings

Failure to allow videotaping

Petitioner alleged the HOA violated statute by prohibiting members from recording meetings. The ALJ found that because the Board recorded the meetings and made them available, prohibiting members from recording did not violate the statute.

Orders: Respondent deemed prevailing party on this item.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Failure to provide compiled financial statements

The HOA failed to complete and provide the 2017 financial compilation within the statutory timeframe (180 days after fiscal year end). Documents were not sent to the accountant until one month prior to the hearing.

Orders: Respondent ordered to pay Petitioner $500.00 (filing fee refund) within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Denial of reasonable access and communication

Petitioner alleged that requiring him to communicate solely through the HOA's attorney violated his rights. The ALJ found this was standard practice when requests become onerous and did not constitute a violation.

Orders: Respondent deemed prevailing party on this item.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Decision Documents

19F-H1919062-REL-RHG Decision – 761767.pdf

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19F-H1919062-REL-RHG Decision – ../19F-H1919062-REL/733895.pdf

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Case Summary: McCoy v. Barclay Place Homeowners Association Case No. 19F-H1919062-REL-RHG

Procedural Context This summary covers an administrative dispute before the Arizona Department of Real Estate involving a rehearing. It is critical to distinguish between the Original Decision (August 27, 2019) and the Rehearing Decision (January 2, 2020),. The rehearing was granted exclusively to reconsider "Complaint Item Three," while the findings on the first two complaints remained adjudicated under the original decision.

I. Original Decision (August 2019)

In the initial proceeding, Petitioner Sean McCoy alleged three violations by the Respondent, Barclay Place HOA.

  • Complaint Item One (Videotaping): Petitioner alleged the HOA violated A.R.S. § 33-1804(A) by prohibiting him from recording meetings.
  • Finding: The Administrative Law Judge (ALJ) ruled for the Respondent. The Board recorded meetings itself and made them available to members; therefore, restricting members from recording did not violate the statute,.
  • Complaint Item Two (Financials): Petitioner alleged the HOA failed to provide compiled financial statements for 2017.
  • Finding: The ALJ ruled for the Petitioner. The HOA failed to complete the compilation within 180 days of the fiscal year-end, violating A.R.S. § 33-1810,. The HOA was ordered to pay the Petitioner $500.00.
  • Complaint Item Three (Communication Restrictions): Petitioner argued that the HOA violated A.R.S. § 33-1805(A) by requiring him to communicate solely through the Board’s attorney rather than contacting the Board or management directly.
  • Finding: The ALJ initially ruled for the Respondent, determining such restrictions are standard industry practice when a homeowner’s requests become onerous,.
II. Rehearing Proceedings (December 2019)

The Department granted a rehearing specifically for Complaint Item Three regarding the denial of reasonable access and communication,.

Key Facts and Arguments

  • The Restriction: In January 2019, the HOA's attorney issued a "cease and desist" letter to the Petitioner. It instructed him to direct all communications to the law firm via U.S. Mail and explicitly prohibited direct contact with the Board or management company.
  • The Incident: On March 6, 2019, Petitioner emailed the management company directly to request contracts, citing A.R.S. § 33-1805(A). The management company refused to accept the email, citing the legal directive to communicate only through counsel.
  • Petitioner’s Argument: Petitioner argued that a letter sent by his own attorney to the HOA's counsel rescinded or terminated the "cease and desist" letter, restoring his right to direct communication.

Legal Analysis and Decision The ALJ ruled in favor of the Respondent, maintaining the original outcome for Item Three based on the following legal points:

  1. Privileged Information: An earlier request by Petitioner (Jan 14, 2019) sought information regarding Board authorizations. The ALJ found this sought privileged attorney-client communications, which the attorney was not required to provide.
  2. Validity of Communication Restrictions: Regarding the March 6, 2019 request, the ALJ found that the Petitioner failed to provide any legal authority to support his assertion that his attorney's objection unilaterally terminated the HOA's cease and desist letter.
  3. No Statutory Violation: Because the management company was acting under valid legal instructions to route communication through counsel, their failure to respond to Petitioner’s direct email did not violate A.R.S. § 33-1805.
Final Outcome
  • Complaint Item Two: Petitioner prevailed (Original Decision).

Case Participants

Petitioner Side

  • Sean McCoy (petitioner)
    appeared on his own behalf at hearing
  • James A. Whitehill (attorney)
    Sent correspondence on behalf of Petitioner

Respondent Side

  • Nathan Tennyson (HOA attorney)
    Brown/Olcott, PLLC
    Represented Respondent at hearing
  • Frank Puma (witness)
    Arizona Community Management Services, LLC (AZCMS)
    Vice President of Client Operations
  • Jamie Murad (witness)
    Arizona Community Management Services, LLC (AZCMS)
    Community Manager
  • Dana Young Jungclaus (witness)
  • Jonathan Olcott (HOA attorney)
    Brown/Olcott
    Authored cease and desist letters

Neutral Parties

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

Sellers, John A. v. Rancho Madera Condominium Association

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Case Summary

Case ID 19F-H1919066-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-26
Administrative Law Judge Antara Nath Rivera
Outcome The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1258. The Association provided available records, and the remaining requested items either did not exist or were properly withheld under statutory exceptions for privileged communications and pending litigation.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1258. The Association provided available records, and the remaining requested items either did not exist or were properly withheld under statutory exceptions for privileged communications and pending litigation.

Why this result: Petitioner failed to establish that the requested documents existed or were improperly withheld. The Respondent successfully demonstrated that it had provided all non-privileged records in its possession and that specific meeting minutes and emails did not exist.

Key Issues & Findings

Failure to Provide Records

Petitioner alleged the Association failed to provide records requested on April 29, 2019, specifically emails regarding specific individuals, legal invoices, executive session minutes, and communications regarding a petition signing.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248

Video Overview

Audio Overview

Decision Documents

19F-H1919066-REL Decision – 733561.pdf

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19F-H1919066-REL Decision – 733561.pdf

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Administrative Law Judge Decision: Sellers v. Rancho Madera Condominium Association

Executive Summary

This briefing document summarizes the administrative law judge (ALJ) decision regarding a dispute between John A. Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent). The case, presided over by ALJ Antara Nath Rivera, centered on allegations that the Association violated Arizona Revised Statutes (A.R.S.) § 33-1258 by failing to provide requested records in a timely and complete manner.

The Petitioner submitted a consolidated records request on April 29, 2019, seeking legal invoices, communications with specific third parties, executive session minutes, and records regarding a member petition. Following a hearing on August 5, 2019, the ALJ determined that the Petitioner failed to prove the Association withheld existing, non-exempt documents. Consequently, the Petition was dismissed on August 26, 2019.

Analysis of Key Themes

1. Statutory Obligations for Record Disclosure

Under A.R.S. § 33-1258, condominium associations are mandated to make financial and other records "reasonably available for examination" to members within ten business days of a written request. However, the statute provides specific exceptions where an association may withhold records, including:

  • Privileged Communications: Correspondence between the association and its attorney.
  • Pending Litigation: Documents specifically relating to active legal matters.
  • Executive Sessions: Meeting minutes or records of board sessions not required to be open to all members under A.R.S. § 33-1248.

The Respondent successfully argued that they had adhered to these standards by providing redacted documents where the information fell under attorney-client privilege or executive session exemptions.

2. The Burden of Proof and Evidence of Existence

A central theme of the decision is the Petitioner’s burden to prove by a "preponderance of the evidence" that a violation occurred. In administrative proceedings, this means the Petitioner must show that the facts sought to be proved are "more probable than not."

The ALJ found that the Petitioner failed to meet this burden regarding items for which the Association claimed no records existed. Specifically:

  • Item #1 (Third-party communications): The Petitioner believed these emails existed to prove communications about him, but the Association testified they were not in their possession.
  • Item #4 (Meeting records for a notarized petition): The Petitioner opined that 21 signatures could not have been collected without a meeting. The Association clarified that no such meetings occurred; rather, individual residents took actions regarding the Petitioner’s divorce proceedings independently.
3. Transparency vs. Legal Redaction

The Association sought to demonstrate a high degree of transparency to counter the Petitioner's claims. Evidence presented by Association President Jeff Kaplan indicated that:

  • The Association received over 400 emails from the Petitioner in three years, approximately 100 of which were records requests.
  • The Association provided documents beyond those requested to facilitate transparency.
  • Financial and bank records were kept accessible to all residents via the Association’s website.

The ALJ accepted that the Association’s use of redactions for legal invoices and executive session minutes was a lawful application of the exceptions provided in A.R.S. § 33-1258(B).

Key Petitioner Requests and Court Findings

Request Item Description Association Response ALJ Conclusion
Item #1 Communications between the HOA/Agents and ROI/Mrs. Sellers. Records do not exist/not in Association's possession. Petitioner failed to prove documents existed at the time of request.
Item #2 Unredacted legal invoices for the current Petition. Provided redacted versions citing attorney-client privilege. Petitioner acknowledged compliance after receiving documents.
Item #3 Records/minutes for all Executive Sessions since the Petition filing. Provided redacted minutes; cited A.R.S. § 33-1248 exemptions. Petitioner did not dispute that records were exempt under the statute.
Item #4 Records regarding meetings held to sign a petition against the Petitioner. No such meetings occurred; signatures were individual actions. Petitioner failed to prove documents existed.

Important Quotes

Regarding the Records Request

"Please consider this email as one consolidated renewed records request… for the following: 1. Copies of all records and communications… with and between ROI, Mrs D Sellers, and or any of their Agents since Nov 1 2018."

  • Context: Petitioner John Sellers’ formal email to Association President Jeff Kaplan on April 29, 2019, which formed the basis of the dispute.
Regarding Statutory Exceptions

"Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association [and] Pending litigation."

  • Context: A citation of A.R.S. § 33-1258(B), used by the ALJ to define the legal boundaries of what an Association is permitted to keep confidential.
Regarding the Final Ruling

"Petitioner failed to establish by a preponderance of the evidence that these documents existed at the time of the April 29, 2019 request such that Respondent’s failure to provide the documents was a violation of A.R.S. § 33-1258."

  • Context: The ALJ’s legal justification for dismissing the Petition regarding items for which no physical records could be produced.

Actionable Insights

  • Verification of Record Existence: For members filing records requests, the belief that a document "should" exist is insufficient for a legal victory; there must be evidence that the record actually exists or was required to be maintained.
  • Understanding Redactions: Association members should be aware that "unredacted" requests for legal invoices are frequently denied based on attorney-client privilege and pending litigation exceptions established in state law.
  • Association Compliance Strategies: To defend against claims of non-compliance, associations should maintain a clear paper trail of all documents provided and ensure that all residents have standing access to basic financial records (e.g., via a community website).
  • Standard of Evidence: Parties in administrative hearings must prepare to meet the "preponderance of the evidence" standard. Mere opinion or speculation—such as the Petitioner’s opining that a meeting "must have happened" to collect signatures—is typically dismissed if countered by testimony of non-existence.

Case Analysis: Sellers v. Rancho Madera Condominium Association

This study guide examines the administrative law proceedings regarding a dispute between a condominium unit owner and a homeowners association (HOA). It focuses on the statutory requirements for records disclosure, the legal exceptions to such requests, and the burden of proof required in administrative hearings.

Key Legal Concepts and Statutory Framework

Arizona Revised Statutes (A.R.S.) § 33-1258: Records Disclosure

This statute governs the availability of association records to its members. The core requirements include:

  • Reasonable Availability: All financial and other records must be made available for examination by a member or their designated representative.
  • Timeline: The association has ten business days to fulfill a request for examination or provide copies of records.
  • Cost: Associations may not charge for the review of materials but may charge up to fifteen cents per page for copies.
Statutory Exceptions to Disclosure

Under A.R.S. § 33-1258(B), an association may withhold books and records if the portion relates to:

  1. Attorney-Client Privilege: Communications between the association and its legal counsel.
  2. Pending Litigation: Records specifically related to ongoing legal disputes.
  3. Executive Session Minutes: Records of board meetings not required to be open to all members pursuant to A.R.S. § 33-1248.
Burden of Proof

In administrative hearings regarding HOA disputes (A.R.S. § 41-2198.01), the Petitioner bears the burden of proof. They must establish a violation by a preponderance of the evidence, meaning the evidence shows that the alleged fact is more probable than not.

Summary of the Dispute: Case No. 19F-H1919066-REL

The Petitioner, John A. Sellers, filed a petition against the Respondent, Rancho Madera Condominium Association, alleging a violation of A.R.S. § 33-1258 for failure to provide records requested on April 29, 2019.

The Four Record Requests
Item # Petitioner's Request Respondent's Position / ALJ Finding
1 Records/emails between Association agents and ROI, Mrs. D. Sellers, or their agents since Nov 2018. Records do not exist; Petitioner failed to prove existence.
2 Unredacted legal invoices for the current Petition, including those paid by insurance. Redacted versions provided; unredacted versions are protected by attorney-client privilege.
3 Notices, emails, and minutes for Executive Sessions since the AZDRE Petition was filed. Redacted minutes provided; records are exempt under A.R.S. § 33-1248/33-1258(B).
4 Communications/notices regarding member meetings held to sign a notarized petition against the Petitioner. No such meetings occurred; signatures were gathered by residents independently. Records do not exist.

Short-Answer Practice Questions

  1. According to A.R.S. § 33-1258, how many business days does an association have to fulfill a request for records?
  • Answer: Ten business days.
  1. What is the maximum fee per page an association can charge for making copies of records?
  • Answer: Fifteen cents ($0.15) per page.
  1. Under what legal theory did the Respondent justify redacting legal invoices in Item #2?
  • Answer: Attorney-client privilege and the "pending litigation" exception.
  1. Who bears the burden of proof in an HOA dispute process petition before the Arizona Department of Real Estate?
  • Answer: The Petitioner.
  1. Why was the Petitioner's request for records of meetings on April 6 and April 8, 2019 (Item #4) denied?
  • Answer: The Respondent testified that no such meetings occurred, and therefore no minutes or records existed.
  1. What does "preponderance of the evidence" mean in the context of this hearing?
  • Answer: Evidence that is of greater weight or more convincing than the opposition, showing a fact is more probable than not.
  1. Is an association required to provide unredacted minutes of an Executive Session of the Board?
  • Answer: No; under A.R.S. § 33-1258(B)(3), these are exempt from disclosure if the session is not required to be open under A.R.S. § 33-1248.

Essay Prompts for Deeper Exploration

  1. Statutory Boundaries of Transparency: Analyze the balance between a member’s right to transparency and an association’s right to privileged communication. Use the ALJ’s ruling on Item #2 and Item #3 to support your argument regarding why certain records remain protected even when a member claims there is "no litigation exception."
  2. The "Non-Existent Document" Defense: In this case, several requests were dismissed because the Respondent claimed the documents did not exist. Discuss the Petitioner’s responsibility in proving the existence of documents versus the Respondent's duty to provide them. How does the ALJ’s ruling on Item #5 clarify the relevance of "record retention policies" in a disclosure dispute?
  3. The Role of Administrative Jurisdiction: Explain the jurisdictional roles of the Arizona Department of Real Estate and the Office of Administrative Hearings in HOA disputes as outlined in A.R.S. § 41-2198.01. Why is this administrative process used instead of a standard civil court for these specific disputes?

Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing, hears evidence, and issues a decision or order.
  • A.R.S. § 33-1248: The Arizona statute governing open meeting requirements for condominium associations.
  • Attorney-Client Privilege: A legal principle that keeps communications between an attorney and their client confidential and protected from disclosure.
  • Executive Session: A portion of a board meeting that is closed to the general membership, typically used to discuss legal, personnel, or sensitive matters.
  • Notice of Hearing: A formal document issued to notify parties of the date, time, and location of a legal proceeding.
  • Petitioner: The party who initiates a lawsuit or petition; in this case, John A. Sellers.
  • Preponderance of the Evidence: The standard of proof in most civil and administrative cases, requiring that a claim be more likely true than not.
  • Respondent: The party against whom a petition is filed; in this case, Rancho Madera Condominium Association.
  • Statutory Exception: A specific condition or circumstance defined in law that exempts a party from a general legal requirement.

HOA Transparency vs. Legal Privacy: Lessons from Sellers v. Rancho Madera Condominium Association

1. Introduction: The Conflict Over Information

In the governed ecosystem of Arizona condominiums, the "right to know" is a frequent flashpoint between unit owners and their associations. While transparency is the bedrock of community trust, it often collides with an association’s statutory right to protect privileged legal strategies and executive deliberations. This tension is not merely academic; it frequently results in high-stakes administrative litigation.

The case of John A. Sellers vs. Rancho Madera Condominium Association (No. 19F-H1919066-REL) provides a masterclass in how these disputes are adjudicated. Decided by the Arizona Department of Real Estate (ADRE) in 2019, the ruling clarifies the boundaries of Arizona Revised Statute § 33-1258, illustrating exactly what records an association must produce—and where the law allows them to shut the door.

2. The Paper Trail: 400 Emails and a Consolidated Request

The dispute reached a boiling point when Petitioner John Sellers, joined by Margaret SwanTKO, issued a "consolidated renewed records request" on April 29, 2019. Alleging that previous requests had been ignored, Sellers demanded four specific categories of documentation under A.R.S. § 33-1258:

  • Third-Party Communications: All records and communications—including emails and conference call notes—between the Association, its agents, and legal counsel (Carpenter Hazelwood) regarding ROI and Mrs. D. Sellers since November 1, 2018.
  • Unredacted Legal Invoices: Complete, unredacted invoices related to the ADRE petition, with Sellers arguing that no litigation exception applied to these financial records.
  • Executive Session Records: All notices, emails, and minutes for every Executive Session of the Board since the filing of the petition, specifically including the meeting where counsel was retained.
  • The "Vendetta" Petition Records: All communications and notices regarding member meetings held to sign a notarized petition—a document that allegedly characterized Sellers as having a "vendetta."

3. The Association’s Defense: "Above and Beyond" Compliance

Represented by Board President Jeff Kaplan, the Rancho Madera Condominium Association countered that it was not the Association being opaque, but rather the Petitioner being overzealous. Kaplan testified to a staggering administrative burden: the Association had received over 400 emails from Sellers in the three years preceding the hearing, approximately 100 of which were formal records requests.

Kaplan argued that the Association had acted with extreme transparency, even going "above and beyond" by providing documents Sellers hadn't specifically requested. To further prove their commitment to disclosure, the Association maintained financial and bank records on a community website accessible to all residents at any time.

4. Legal Analysis: Understanding A.R.S. § 33-1258

The resolution of these disputes hinges on A.R.S. § 33-1258, which serves as the definitive guide for HOA record disclosure in Arizona. The statute establishes a clear "General Rule" for transparency while carving out narrow "Statutory Exceptions" to protect sensitive information.

HOA Records: Disclosure vs. Exclusion
General Rule (A.R.S. § 33-1258(A)) Statutory Exceptions (A.R.S. § 33-1258(B))
Availability: All financial and other records must be made available within ten business days of a written request. Attorney-Client Privilege: Privileged communications between the association and its legal counsel are exempt.
Access: Records must be open for examination by a member or their designated representative. Pending Litigation: Records specifically related to active or pending legal matters may be withheld.
Costs: Associations may charge up to $0.15 per page for copies but cannot charge for the time spent reviewing the materials. Executive Sessions: Meeting minutes or records for board sessions not required to be open under A.R.S. § 33-1248 (e.g., personnel or legal matters).

5. The Judge’s Ruling: The Limits of Discovery

Administrative Law Judge Antara Nath Rivera dismissed the petition on August 26, 2019, after applying the "Preponderance of the Evidence" standard. This required the Petitioner to prove it was "more probable than not" that a violation occurred. The ruling turned on several key findings:

  • Items #1 and #4 (The Existence of Records): Sellers "strongly believed" emails and meeting minutes regarding a "vendetta petition" existed. However, Kaplan testified that no such meetings occurred on the dates Sellers alleged (April 6 or 8, 2019). The Judge ruled that Sellers failed to prove the records existed. Under the law, an association cannot be penalized for failing to produce non-existent documents.
  • Item #2 (The Admission of Satisfaction): While Sellers originally demanded unredacted legal invoices, he admitted during the hearing that he was satisfied with the redacted versions eventually provided. This admission effectively neutralized the claim.
  • Item #3 (Executive Sessions): The Association provided redacted minutes of executive sessions. Sellers did not dispute that these records fell under the statutory exceptions of A.R.S. § 33-1258(B).
  • The "Human Interest" Context: The testimony revealed that the "notarized petition" Sellers sought records for was actually an effort by neighbors who were unhappy with him. These residents had even attended Sellers’ divorce proceedings to influence the court against awarding him the house, as they no longer wished to have him as a neighbor.

6. Key Takeaways for HOA Members and Boards

The Sellers decision offers three critical lessons for community association stakeholders:

  1. The Burden of Proof is on the Requester: It is not enough to suspect that an association is hiding documents. To prove a violation, a member must provide evidence that the records actually exist. Furthermore, a "record retention policy" does not change the outcome; if a record is not in the association's possession at the time of the request, there is no violation of § 33-1258.
  2. Privilege and Redaction are Standard: While members have a right to see legal invoices, they do not have a right to see the legal strategy contained within them. Redacting privileged information regarding current litigation is the legally accepted middle ground.
  3. Statutory Exceptions are Absolute: The protections for attorney-client privilege and executive sessions under A.R.S. § 33-1258(B) and § 33-1248 are robust. Boards that maintain organized records and apply these exceptions consistently are well-positioned to defeat "fishing expedition" style petitions.

7. Conclusion: Balancing Rights and Regulations

The dismissal of John Sellers' petition underscores a fundamental reality of community association law: the right to information is not an absolute right to every scrap of paper. By providing bank records via a website and complying with redacted requests, the Rancho Madera Condominium Association demonstrated the "above and beyond" transparency that judges look for.

For associations, the lesson is to remain organized and responsive. For members, the lesson is to understand that the law protects the board's ability to consult with counsel and deliberate in private. Without this balance, the administrative burden of endless requests can quickly overshadow the actual management of the community.

Case Participants

Petitioner Side

  • John A. Sellers (petitioner)
    Appeared on his own behalf; member of the Association
  • Margaret SwanTKO (member)
    Listed in consolidated records request with John Sellers

Respondent Side

  • Jeff Kaplan (board president)
    Rancho Madera Condominium Association
    Testified on behalf of Respondent
  • Ed O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Appeared on behalf of Respondent
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Listed on distribution list

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Listed on distribution list

Other Participants

  • Mrs. D. Sellers (unknown)
    Mentioned in records request regarding communications

Teresa J Johnstonbaugh vs. Clemente Ranch Homeowners

Posted on by

Case Summary

Case ID 19F-H1919058-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-07
Administrative Law Judge Jenna Clark
Outcome The ALJ granted the petition, finding that the Petitioner's boundary walls adjoining the common area were the responsibility of the Association to maintain under the Bylaws and past practice. The Association violated the Bylaws by failing to maintain the wall and attempting to shift costs to the homeowner.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Teresa J Johnstonbaugh Counsel —
Respondent Clemente Ranch Homeowners Association Counsel Lynn Krupnick

Alleged Violations

Bylaws Article 3.11(A)(5)

Outcome Summary

The ALJ granted the petition, finding that the Petitioner's boundary walls adjoining the common area were the responsibility of the Association to maintain under the Bylaws and past practice. The Association violated the Bylaws by failing to maintain the wall and attempting to shift costs to the homeowner.

Key Issues & Findings

Whether Respondent violated Community Document Bylaws Article 3.11(A)(5)

Petitioner alleged the HOA failed to maintain a boundary wall defined as common area (replacing it with chain-link) and attempted to charge her for repairs, violating the duty to maintain common areas outlined in the Bylaws.

Orders: Respondent shall comply with Article 3.11(A)(5) of its Bylaws.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Bylaws Article 3.11(A)(5)

Video Overview

Audio Overview

Decision Documents

19F-H1919058-REL Decision – 728648.pdf

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19F-H1919058-REL Decision – 728648.pdf

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Administrative Law Judge Decision: Johnstonbaugh vs. Clemente Ranch Homeowners Association

Executive Summary

This briefing document summarizes the administrative hearing and subsequent decision regarding Case No. 19F-H1919058-REL, involving Petitioner Teresa J. Johnstonbaugh and Respondent Clemente Ranch Homeowners Association. The central issue was whether the Association violated its own Bylaws (Article 3.11(A)(5)) by failing to maintain and repair boundary walls adjoining and adjacent to a common area.

The Petitioner challenged an assessment of $9,342.60 (representing a 50% repair fee) for the renovation of a wall between her property and a common area along Queen Creek Road. On August 7, 2019, Administrative Law Judge Jenna Clark ruled in favor of the Petitioner, finding that the Association had historically accepted responsibility for the wall as a common area and failed to maintain it in accordance with the governing documents. The Association was ordered to comply with its Bylaws and fulfill its maintenance obligations.

Analysis of Key Themes

1. Definition and Scope of Common Areas

The primary conflict centered on whether the walls in question were the responsibility of the individual homeowner or the Association. Under CC&R Section 1.11, "Common Area" is defined to include specific tracts, project boundary walls located adjacent to common areas, and any property deeded to the Association for maintenance.

The Petitioner argued, and the court agreed, that her walls met these criteria:

  • One portion was classified as a "boundary wall adjoining the common area."
  • The other portion was a "boundary wall adjacent to the common area."
  • The Petitioner explicitly denied these were "party walls," which would typically imply shared maintenance costs between neighbors.
2. Impact of Historical Precedent

The Association’s past conduct significantly influenced the ruling. For several years, the Association provided landscaping, repair, and maintenance services for the area in question.

  • 2012 Resolutions: In November 2012, the Board resolved to add reinforcement columns to the rear yard walls at the Association's expense.
  • Efficiency Logic: Meeting minutes from that time indicate the Board believed it was "more efficient" for the Association to pay for the wall repairs and landscape work along Queen Creek Road.
  • Inconsistent Counsel: In June 2019, the Association notified the Petitioner that previous legal counsel had "advised them incorrectly" regarding the responsibilities for wall repair, leading to the Association's attempt to shift costs to the homeowners.
3. Financial Escalation and Assessment Shifts

The Association's willingness to cover costs appeared to change as the scope of the project grew.

  • Initial Estimates: In 2013, the renovation cost was projected at approximately $16,678.12.
  • Discovery of Latent Defects: Following a 2018 engineering report, the Association discovered inherent construction defects that could not be easily cured.
  • Current Project Costs: New bids for the wall project ranged from $2,500,000.00 to $3,100,000.00.
  • The Funding Gap: The Association only secured a $1,500,000.00 loan. This underfunding led the Board to issue special assessments and attempt to charge the Petitioner a 50% fee, a move the judge found violated the established maintenance obligations.
4. Current State of the Property

Evidence revealed that the Association's maintenance efforts had not only ceased but had left the property in a state of disrepair. In March 2019, the Association tore down the Petitioner’s boundary wall and replaced it with a chain-link fence, later adding plywood in May 2019. This temporary structure remained in place through the date of the hearing.

Important Quotes and Context

Regarding Association Duties

"The Board shall have all of the powers and duties necessary for the administration of the affairs of the Association… Provide for the operation, care, upkeep and maintenance of all of the Common Area." — Article 3.11(A)(5) of the Association Bylaws

Context: This is the specific provision the Association was found to have violated. The judge determined that since the walls were common areas, the Association had a non-discretionary duty to maintain them.

Regarding the Shift in Responsibility

"The Board believes its more efficient to have the Association pay for the cost of the wall repair and landscape work needed in the common area along Queen Creek; however the homeowners will need to pay for any damage or landscape work on their side of the wall." — Board of Director Meeting Minutes (November 26, 2012)

Context: This quote establishes that the Board had previously acknowledged its responsibility for the wall's structural integrity and the Association-side maintenance, distinguishing it from the homeowner's interior yard work.

Regarding the Standard of Proof

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." — Administrative Law Judge Decision (referencing Morris K. Udall, Arizona Law of Evidence)

Context: The judge used this standard to determine that the Petitioner’s evidence regarding the classification of the walls and the Association's historical maintenance was "more substantially persuasive and credible" than the Association's defense.

Key Data and Fact Summary

Category Detail
Case Number 19F-H1919058-REL
Hearing Date July 19, 2019
Petitioner's Assessment $9,342.60 (50% of repair cost)
Initial 2013 Contract $16,678.12 plus $1,000 for plans/permits
2019 BPC Contract $129,203.00 (before latent defects discovery)
New Project Bids $2.5 Million – $3.1 Million
Association Loan $1.5 Million
Governing Statute ARIZ. REV. STAT. Title 33, Chapter 16, Article 1

Actionable Insights

  • Restoration of Property: The Association is now legally required to move beyond temporary measures (chain-link and plywood) and provide permanent upkeep and maintenance for the common area walls adjacent to the Petitioner's property.
  • Assessment Validity: The decision implies that the Association cannot unilaterally shift 50% of the cost of common area wall repairs to individual homeowners under the current Bylaws, especially when historical conduct has established the Association's responsibility.
  • Member Voting Requirements: Article 3.11(A)(5) requires the consent of members holding at least two-thirds of the total votes to borrow money in excess of $5,000. As the Association is currently underfunded for the multi-million dollar wall project, a member vote on special assessments is a critical next step.
  • Committee Oversight: The Association is encouraged to proceed with the creation of a member-led committee to oversee the new wall project, as noted in the findings of fact, to ensure transparency and adherence to the judge's order.

Study Guide: Johnstonbaugh v. Clemente Ranch Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing between Teresa J. Johnstonbaugh and the Clemente Ranch Homeowners Association. It examines the legal issues, factual background, and the final decision rendered by the Office of Administrative Hearings (OAH).

Case Overview and Key Concepts

The case (No. 19F-H1919058-REL) centered on a dispute regarding the maintenance and repair responsibilities of a homeowners association (HOA) versus an individual homeowner. The primary legal question was whether the Clemente Ranch Homeowners Association violated its own Bylaws by failing to maintain a wall that separated a member's property from a common area.

Core Legal Issue

The central issue was whether the Respondent violated Community Document Bylaws Article 3.11(A)(5). This specific article mandates that the Board of Directors provide for the operation, care, upkeep, and maintenance of all Common Areas.

Jurisdiction and Governance
  • Arizona Department of Real Estate: Authorized by statute to receive and decide petitions regarding disputes between homeowners and associations.
  • Office of Administrative Hearings (OAH): An independent state agency that conducts evidentiary hearings on these matters.
  • Governing Documents: The Association is governed by its Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and its Bylaws, while also being regulated by Arizona Revised Statutes (A.R.S.) Title 33, Chapter 16, Article 1.
The Burden of Proof

In this administrative proceeding, the Petitioner (Johnstonbaugh) bore the burden of proving the violation by a preponderance of the evidence. This legal standard means the evidence must show that the contention is "more probably true than not."

Short-Answer Practice Questions

1. Who were the primary parties involved in this case? The Petitioner was Teresa J. Johnstonbaugh, a property owner and member of the Association. The Respondent was the Clemente Ranch Homeowners Association.

2. What financial assessment did the Petitioner challenge in her petition? The Petitioner was being assessed a fifty percent fee of $9,342.60 for the repair of a wall located between her property and a common area.

3. What specific action did the Association take regarding the Petitioner’s wall in March 2019? The Association tore down the Petitioner’s adjacent boundary wall and replaced it with a chain-link fence, later adding plywood to the fencing in May 2019.

4. Why did the Association change its legal stance on wall maintenance in June 2019? The Association informed the Petitioner that it had retained new legal counsel because previous counsel had allegedly advised them incorrectly regarding the rights and responsibilities of wall repair and maintenance within the community.

5. What did the 2012 Board Meeting Minutes reveal about the Association’s historical stance on wall repairs? The 2012 minutes stated that the Board believed it was more efficient for the Association to pay for wall repairs and landscape work along Queen Creek Road because the costs were under $20,000.

6. What "latent defects" were discovered during the construction project that began in early 2019? The Association was informed that there were inherent flaws in the original construction of the subdivision’s walls that the current repair project could not cure or repair.

7. How much was the loan the Association secured, and how did it compare to the actual bids for the new wall project? The Association secured a $1,500,000 loan, but bids for the necessary repairs ranged from $2,500,000 to $3,100,000, leaving the project underfunded.

8. What was the final ruling of the Administrative Law Judge (ALJ)? The ALJ granted the petition, concluding that the Association had violated Article 3.11(A)(5) of its Bylaws by failing to maintain the common area wall over the course of seven years.

Essay Prompts for Deeper Exploration

1. The Evolution of Responsibility: 2012 vs. 2019 Analyze how the Association's interpretation of its responsibilities changed between 2012 and 2019. In your essay, discuss the significance of the 2012 Board Meeting Minutes as evidence of the Association's established patterns of maintenance. How did the discovery of "latent defects" and increased repair costs influence the Board's decision to shift financial responsibility to the homeowners?

2. Defining "Common Area" and "Boundary Wall" The case hinged significantly on the classification of the walls. Using the definitions provided in Section 1.11 of the CC&Rs and the findings of fact, evaluate the distinction between a "party wall," a "boundary wall adjoining the common area," and a "boundary wall adjacent to the common area." Explain how these definitions dictate maintenance obligations under the Association's governing documents.

3. The Preponderance of Evidence in Administrative Law The Administrative Law Judge noted that both parties presented conflicting evidence regarding what constituted a "common area." Discuss the factors that led the Judge to find the Petitioner’s evidence "more substantially persuasive and credible." How does the "preponderance of evidence" standard function in a case where historical practice (maintenance history) conflicts with new legal interpretations?

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who conducts hearings and issues decisions for state agencies, such as the OAH.
Bylaws The internal rules that govern the administration of a homeowners association, including the powers and duties of the Board.
CC&Rs Declaration of Covenants, Conditions, and Restrictions; the legal documents that lay out the rules for a common interest development.
Common Area Property owned and maintained by the association for the use and benefit of all members (e.g., Tracts A-E in Clemente Ranch).
Latent Defects Hidden flaws in design or construction that are not discoverable by a reasonable inspection.
Petitioner The party who initiates the legal action or petition (in this case, the homeowner).
Preponderance of the Evidence The standard of proof in civil and administrative cases, meaning the evidence shows the claim is more likely true than not.
Respondent The party against whom a petition is filed (in this case, the HOA).
Special Assessment A fee charged to association members for a specific, often unexpected, expense that is not covered by regular dues.
Tract B A specific section of common area adjacent to the Petitioner's boundary wall, identified in the CC&Rs.

The Great Wall Dispute: Lessons from the Clemente Ranch HOA Legal Ruling

1. Introduction: When "Common Area" Becomes an Uncommon Problem

In the complex landscape of community living, the boundary between individual property rights and Association responsibility is often governed by a delicate set of legal definitions. When these definitions are ignored or reinterpreted to suit a budget, conflict is inevitable. The case of Teresa J. Johnstonbaugh vs. Clemente Ranch Homeowners Association serves as a landmark administrative ruling in Arizona, highlighting the limits of an HOA’s authority to shift maintenance costs onto homeowners.

At the center of this dispute was a crumbling masonry wall and a fundamental legal question: Is a boundary wall bordering a public road the responsibility of the homeowner or the Association? What began as a localized repair project evolved into a $3 million crisis, ultimately forcing a legal reckoning over how governing documents must be enforced, regardless of the price tag.

2. Case Background: From Masonry to Plywood

The deterioration of the walls along Queen Creek Road was first identified in 2012. For seven years, the Clemente Ranch Homeowners Association (the Association) operated under the assumption that it was responsible for the upkeep of these project boundary walls. However, as repair costs escalated, the Association's commitment to its own precedents began to waver.

The timeline of the Association's shifting stance reveals a sudden pivot in 2019:

Feature HOA’s Initial Stance (2012–2018) HOA’s Actions in 2019
Responsibility Accepted full responsibility for wall repair and common area landscaping. Attempted to shift 50% of the costs to homeowners via special assessments.
Proposed Action 2012: Add reinforcement columns; 2018: Full engineering evaluation. Tore down masonry wall; replaced with chain-link and plywood (Petitioner’s property).
Contractual Commitment Approved $16,678.12 (2013); signed $129,203 contract (Jan 2019). Stopped work; sought member approval for bids between $2.5M and $3.1M.

By March 2019, the Association had demolished the Petitioner’s masonry wall, replacing it with a temporary chain-link fence. By May, they added plywood to the fence, leaving the property with a makeshift barrier that failed to meet community standards while the Board attempted to resolve a massive financial shortfall.

3. The Legal Pivot: The HOA’s $3 Million Dilemma

The Association’s financial strategy shifted dramatically following the discovery of "Latent Defects." In June 2018, a structural engineering report revealed that the walls were fundamentally flawed from their original construction. Despite this, the Board moved forward, signing a $129,203 contract in January 2019 to begin repairs.

The crisis peaked when construction began in February 2019. Contractors informed the Board that the existing project could not fix the inherent structural defects. New bids for a complete overhaul skyrocketed to between $2.5 million and $3.1 million. Faced with a reserve fund that was woefully inadequate and a loan capacity capped at $1.5 million, the Association attempted a legal retreat.

Claiming they had been "incorrectly advised" by previous legal counsel, the Board sought to redefine the walls as shared responsibilities. Consequently, the Petitioner was hit with a specific assessment for a fifty percent fee of $9,342.60. This move effectively attempted to monetize the Association’s failure to plan for long-term structural maintenance.

4. Decoding the Governing Documents: CC&Rs and Bylaws

The resolution of this case hinged on the precise language of the community’s governing documents. As a legal analyst, one must look at the specific definitions that the Board attempted to circumvent.

  • CC&R Section 1.11(d): This is the "smoking gun" of the ruling. It explicitly defines "Common Area" to include "the Project boundary walls located adjacent to Common Areas on the boundary lines of Lots."
  • Bylaw Article 3.11(A)(5): This mandates that the Board "provide for the operation, care, upkeep and maintenance of all of the Common Area."

The Petitioner argued successfully that her wall was a boundary wall adjacent to Tract B (a common area) and facing a public roadway. She specifically challenged the Association’s attempt to reclassify the structure as a "party wall." In legal terms, a party wall is shared between two private neighbors, with shared costs. Because this wall bordered a common area owned by the Association, it was a boundary wall, making the Association 100% responsible for its maintenance under the CC&Rs.

5. The Administrative Law Judge's Decision

Administrative Law Judge Jenna Clark applied the "Preponderance of the Evidence" standard. This requires the Petitioner to prove her case is "more probably true than not." In this instance, the Association’s "shifting defense" worked against them. The Judge found the Petitioner’s evidence—years of consistent maintenance by the Association—to be more persuasive than the Association's sudden discovery of a "new" legal interpretation once the price of repairs became inconvenient.

The Judge’s "Conclusions of Law" emphasized two critical points:

  1. The Avoidance of Absurdity: The Judge noted that Bylaws must be construed to avoid an "absurdity." It would be absurd to allow an Association to abandon its clear maintenance duties simply because the costs of those duties increased due to poor financial planning or the discovery of structural defects.
  2. Failure of Duty: The ruling found that by tearing down the masonry wall and leaving the property with chain-link and plywood for seven years (dating back to the initial 2012 signs of deterioration and culminating in the 2019 demolition), the Association had failed in its duty to maintain the common area.

The Judge ultimately ordered the Association to comply with Bylaw Article 3.11(A)(5) and assume its rightful responsibility for the wall.

6. Final Takeaways for Homeowners and Boards

The Johnstonbaugh vs. Clemente Ranch case provides a vital roadmap for community governance and homeowner advocacy:

  1. Consistency Establishes Precedent: When an HOA consistently performs landscaping and repairs on a structure for years, it reinforces the legal interpretation that the structure is a common area. A Board cannot unilaterally reverse this precedent to avoid a high-cost project.
  2. Governance Trumps Budgeting: An HOA’s legal obligation to maintain the community is not a "sliding scale" based on the current bank balance. A lack of funds, underfunded reserves, or loan shortfalls does not absolve a Board of its duties under the Bylaws. Financial mismanagement is not a legal defense for non-performance.
  3. Definitions are Decisive: The distinction between a "party wall" (shared between neighbors) and a "boundary wall adjacent to common areas" (Association responsibility) is worth thousands of dollars. Homeowners must hold Boards strictly to the definitions found in CC&R Section 1.11.

Community associations are governed by contracts, not by the convenience of the Board. This ruling serves as a powerful reminder that when an Association attempts to shift its $3 million problems onto individual homeowners, the governing documents remain the final authority.

Case Participants

Petitioner Side

  • Teresa J. Johnstonbaugh (petitioner)
    Appeared on her own behalf

Respondent Side

  • Lynn Krupnick (HOA attorney)
    Krupnik & Speas, PLLC
  • Timothy Krupnick (HOA attorney)
    Krupnik & Speas, PLLC
  • Jaime Therrien (community manager)
    Clemente Ranch Homeowners Association
    Witness for Respondent
  • Joseph Therrien (observer)
    Appeared with Respondent
  • Nick Ferre (observer)
    Appeared with Respondent
  • Barbara Dewitt (observer)
    Appeared with Respondent

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the transmitted order

Bonnie Senftner v. Desert Wind Condominium Association

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Case Summary

Case ID 19F-H1919056-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-07-22
Administrative Law Judge Thomas Shedden
Outcome The ALJ dismissed the petition, ruling that the Petitioner failed to prove the Association violated the CC&Rs. The preponderance of evidence showed the damage was caused by an adjoining unit owner, and the CC&Rs assign liability to that owner, not the Association.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Bonnie Senftner Counsel —
Respondent Desert Wind Condominium Association Counsel Shlomit Gruber

Alleged Violations

Article XIV, Section 14.2

Outcome Summary

The ALJ dismissed the petition, ruling that the Petitioner failed to prove the Association violated the CC&Rs. The preponderance of evidence showed the damage was caused by an adjoining unit owner, and the CC&Rs assign liability to that owner, not the Association.

Why this result: Petitioner relied on a CC&R section that assigns liability to the specific owner causing damage rather than the HOA, and failed to produce evidence or legal authority obligating the HOA to pay.

Key Issues & Findings

Party Walls and Damage by Adjoining Owners

Petitioner alleged the HOA violated the CC&Rs regarding party walls by not reimbursing her for mold testing costs after a washing machine in an adjoining unit caused water damage. The ALJ found the cited section places responsibility on the owner causing the damage, not the HOA.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Article XIV, Section 14.2
  • Section 1.12
  • Section 10.5

Video Overview

Audio Overview

Decision Documents

19F-H1919056-REL Decision – 724318.pdf

Uploaded 2026-04-24T11:20:01 (88.8 KB)

19F-H1919056-REL Decision – 724318.pdf

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Administrative Law Judge Decision: Senftner v. Desert Wind Condominium Association

Executive Summary

This document provides a comprehensive briefing on the administrative hearing (Case No. 19F-H1919056-REL) between Bonnie Senftner (Petitioner) and the Desert Wind Condominium Association (Respondent). The dispute centered on alleged violations of the Association’s Covenants, Conditions, and Restrictions (CC&Rs) regarding damage to a party wall.

The Petitioner sought reimbursement for mold testing and argued that the Association’s voluntary repair of water damage constituted an admission of liability. However, the Administrative Law Judge (ALJ) determined that under the specific language of the CC&Rs, the responsibility for damage caused by an adjoining owner lies with that owner, not the Association. Consequently, the petition was dismissed on July 22, 2019.

Detailed Analysis of Key Themes

Interpretation of CC&R Section 14.2 (Party Walls)

The core of the dispute rested on the interpretation of Article XIV, Section 14.2 of the Association’s CC&Rs. The Petitioner alleged that the Association violated this provision when it failed to reimburse her for mold testing following water damage.

The ALJ's analysis focused on two primary definitions within the CC&Rs:

  • Party Wall Definition: Section 1.12 defines a party wall as a wall located on the division line between adjoining units used by both owners.
  • Liability for Damage: Section 14.2 explicitly states that if a party wall is damaged by the act of an adjoining owner (whether willful, negligent, or accidental), that owner is responsible for the repairs "without cost to the other adjoining Owner."

The findings established that the Association is not an "adjoining owner" in the context of a party wall between two private units. Therefore, the obligation to repair under Section 14.2 falls upon the owner of the unit where the damage originated, not the Association.

Causation and Association Intervention

The evidence presented during the hearing identified the source of the damage as unit 216. A plumber's inspection revealed that a washing machine in unit 216 was improperly installed, draining into a sink and over-topping a drain pipe. A second inspection confirmed that the discharge had damaged the pipe shared with unit 116 (owned by the Petitioner's LLC).

Despite the CC&R language placing responsibility on the unit owner, the Association voluntarily:

  1. Repaired the damaged pipe.
  2. Completed mold remediation.
  3. Repaired the drywall.

The Petitioner argued that these actions evidenced the Association's acceptance of legal responsibility. The ALJ rejected this, noting that the Petitioner provided no legal authority to support the claim that voluntary repairs create a mandatory obligation for further reimbursements.

Jurisdictional and Procedural Scope

The ALJ clarified the limits of the Association's duty to intervene in owner-to-owner disputes. While the Petitioner argued that the Association must act when unit owners disagree on repair costs, she could provide no CC&R provision to support this. The ALJ noted that while CC&R Section 10.5 involves arbitration, it is strictly limited to disputes regarding common areas, not private party walls.

Important Quotes with Context

Quote Source/Context Significance
"If any party wall is damaged or destroyed through the act or acts of one adjoining Owner… such adjoining Owner shall forthwith proceed to rebuild or repair the same to as good a condition as formerly, without cost to the other adjoining Owner." CC&R Section 14.2 This is the primary clause used to determine liability, placing the burden on the neighbor rather than the HOA.
"Petitioner presented no credible evidence or legal authority showing that by making those repairs, Respondent became obligated to reimburse Petitioner for any expenses she incurred." Conclusion of Law #5 This addresses the Petitioner's argument that the HOA's voluntary repairs established a legal precedent for liability.
"The preponderance of the evidence shows that the water damage for which Petitioner seeks redress was caused by the Owner of unit 218 [sic], and Section 14.2 imposes no duty on the Respondent to repair such damage." Conclusion of Law #5 This summarizes the legal basis for the dismissal, confirming the Association has no duty under the cited section.
"A wall located upon or at the division line between adjoining Units and used by both Owners of such Units…" CC&R Section 1.12 Provides the technical definition of a "party wall" used to apply the rules of Article XIV.

Actionable Insights

For Association Governance
  • Voluntary Repairs Do Not Equal Liability: An Association may choose to perform repairs to mitigate damage or mold within the community without necessarily assuming legal liability for all associated costs (such as third-party testing conducted by owners).
  • Clear Distinction of Roles: It is critical to distinguish between "Common Areas" and "Party Walls." Association responsibilities and arbitration requirements for common areas (Section 10.5) do not automatically extend to disputes between individual unit owners regarding shared walls.
For Unit Owners
  • Burden of Proof: In administrative hearings, the Petitioner bears the burden of proof by a "preponderance of the evidence." To succeed, a Petitioner must prove it is "more likely than not" that a specific CC&R violation occurred.
  • Direct Recourse Against Adjoining Owners: Under Section 14.2, when damage is caused by a neighbor’s appliance or negligence, the legal remedy is typically against that neighbor directly, rather than the Association.
  • Citing Specific Authority: Claims regarding an Association’s duty to mediate or pay for testing must be backed by specific language in the CC&Rs. General assertions of "responsibility" are insufficient if the contract language (CC&Rs) points elsewhere.

Case Study Guide: Senftner v. Desert Wind Condominium Association

This study guide provides a comprehensive overview of the administrative law case Bonnie Senftner v. Desert Wind Condominium Association (No. 19F-H1919056-REL). It covers the legal frameworks, factual findings, and judicial conclusions derived from the July 10, 2019, hearing before the Arizona Office of Administrative Hearings.

Key Legal Concepts and Factual Overview

The Nature of CC&Rs

Covenants, Conditions, and Restrictions (CC&Rs) function as a contract between a homeowners association and the unit owners. Under Arizona law (specifically referencing Johnson v. The Pointe Community Association), all parties are required to comply with the terms set forth in these documents.

Party Wall Definitions and Liabilities

Under the Desert Wind Condominium Association CC&Rs:

  • Definition (Section 1.12): A "party wall" is a wall located at the division line between adjoining units and used by both owners in the construction of their respective units.
  • Liability (Section 14.2): If a party wall is damaged or destroyed by the acts of an adjoining owner (or their guests, tenants, or agents), that owner is responsible for rebuilding or repairing the wall to its former condition at their own cost. This applies whether the act was willful, negligent, or accidental.
The Dispute

The Petitioner, Bonnie Senftner, alleged that the Respondent, Desert Wind Condominium Association, violated Article XIV, Section 14.2 of the CC&Rs. The core of the dispute involved water damage to a wall in unit 116 (owned by Senftner) caused by an issue in unit 216.

Factual Findings
  • Source of Damage: A washing machine in unit 216 was improperly installed, draining into a sink. The discharge exceeded the drain pipe's capacity, causing water to enter the wall.
  • Association Actions: The Association hired plumbers to investigate, repaired the damaged pipe, completed mold remediation, and performed drywall repairs.
  • Petitioner's Argument: Senftner argued that because the Association performed these repairs, they accepted legal responsibility for the damage and should therefore reimburse her for independent mold testing she conducted.

Short-Answer Practice Questions

1. Who bears the burden of proof in this administrative hearing, and what is the required standard of proof?

Answer: The Petitioner (Bonnie Senftner) bears the burden of proof. The standard of proof is a "preponderance of the evidence."

2. According to CC&R Section 14.2, who is responsible for the cost of repairing a party wall damaged by a tenant's negligence?

Answer: The "adjoining Owner" whose tenant caused the damage is responsible for the cost.

3. What specific mechanical failure led to the water damage in unit 116?

Answer: A washing machine in unit 216 was draining into a sink; the drain pipe was over-topped because it could not accommodate the volume of the washer’s discharge.

4. Why did the Administrative Law Judge (ALJ) determine that CC&R Section 10.5 did not apply to this case?

Answer: Section 10.5 deals with disputes between the Association and owners regarding repairs to common areas, whereas this dispute involved a party wall between two owners.

5. Does the Association's voluntary repair of a pipe or mold remediation constitute a legal admission of liability under the CC&Rs?

Answer: No. The ALJ found no credible evidence or legal authority suggesting that making repairs obligated the Association to reimburse the Petitioner for additional expenses.

Essay Prompts for Deeper Exploration

1. The Distinction Between Common Areas and Party Walls

Explain the legal distinction between common area disputes and party wall disputes as outlined in the case. In your essay, analyze why the Petitioner's inability to cite a specific CC&R provision regarding Association mediation of owner-to-owner disputes was fatal to her claim.

2. Contractual Obligations and Voluntary Performance

The Petitioner argued that the Association "accepted responsibility" by performing repairs. Discuss the implications of this argument in the context of contract law. Should an Association be penalized for taking proactive steps to mitigate damage (such as mold remediation) even if they are not strictly required to do so by the CC&Rs?

3. Analyzing the "Preponderance of the Evidence"

Define "preponderance of the evidence" as used in this decision. Use the facts of the Senftner case to demonstrate how the evidence "inclined a fair and impartial mind" toward the Respondent’s side, despite the Association’s decision to pay for the initial repairs.

Glossary of Important Terms

Term Definition
Adjoining Owner The owner of a unit that shares a common boundary or party wall with another unit.
CC&Rs Covenants, Conditions, and Restrictions; the governing legal documents that establish the rules for a common interest development.
Common Areas Portions of the condominium project intended for the use and enjoyment of all owners, typically managed by the Association.
Party Wall A wall located on or at the division line between adjoining units, used by both owners.
Preponderance of the Evidence The standard of proof in civil cases where the evidence must show that a fact is more likely true than not; the "greater weight" of the evidence.
Petitioner The party who brings a petition or claim to a court or administrative body (in this case, Bonnie Senftner).
Respondent The party against whom a petition or claim is filed (in this case, Desert Wind Condominium Association).
Administrative Law Judge (ALJ) A judge who presides over hearings and adjudicates disputes involving administrative agencies.

Who Pays for the Leak? A Lesson in HOA Liability and Party Walls

1. The "Neighbor's Leak" Nightmare: An Introduction

It is a scenario every condo owner dreads: you return home to find a water stain spreading across your ceiling or dampness buckling your drywall. When the source is identified as a neighbor’s unit, the immediate reaction is often to call the Homeowners Association (HOA) and demand they "fix it." But as many owners learn the hard way, just because a leak happens inside an Association building doesn't mean the Association is the one who has to pay for it.

The case of Bonnie Senftner vs. Desert Wind Condominium Association, adjudicated by the Arizona Department of Real Estate, provides a masterclass in the boundaries of HOA responsibility. It centers on a critical question: If an HOA steps in to help with initial repairs, does that voluntary act make them legally liable for every other related cost?

2. The Incident: When Washing Machines Go Wrong

The dispute began when Unit 116 (owned by a family LLC) suffered water damage to a wall shared with the unit above. To resolve the mystery, the Association sent in two different plumbers to investigate.

The findings were a classic example of "owner-induced" damage. The first plumber discovered that a washing machine in Unit 216 had been improperly installed. Rather than having a dedicated discharge line, the machine was draining directly into a sink. Because the sink’s drain pipe couldn't handle the high-volume discharge of a washing machine, the pipe would "over-top"—essentially overflowing—and send water into the wall. A second plumber confirmed that this excessive discharge had physically damaged the drain line where Unit 216 ties into the line for Unit 116.

Recognizing the potential for the water to spread and damage structural studs or other units, the Association acted quickly. They paid for the pipe repair, mold remediation, and drywall restoration. However, when the owner of Unit 116 conducted her own private mold testing and demanded reimbursement, the Association drew a line in the sand.

3. Understanding the "Party Wall" Rule

The resolution of this case hinged on whether the damaged area was a "Common Area" (the HOA’s responsibility) or a "Party Wall." Per CC&R Section 1.12, a party wall is any wall located on the division line between adjoining units that is used by both owners.

The governing rules for these walls are found in the "Gold Standard" provision of the Association’s documents:

CC&R Article XIV, Section 14.2: Damage by One of the Adjoining Owners "If any party wall is damaged or destroyed through the act or acts of one adjoining Owner, or any of his guests, tenants, licensees, agents, servants or members of his family (whether such act is willful, negligent or accidental), such adjoining Owner shall forthwith proceed to rebuild or repair the same to as good a condition as formerly, without cost to the other adjoining Owner."

The Legal Obligation: This section is unambiguous. If an owner (or their tenant) causes damage to a shared wall, that owner is the one legally responsible for the costs—not the innocent neighbor and not the Association.

4. The Turning Point: When Good Deeds Don't Equal Legal Liability

The Petitioner argued that because the Association paid for the remediation and drywall, they had effectively admitted liability for the entire event. As a consultant, I see this misunderstanding often: owners assume that "management is fixing it" equals "management is responsible."

The Administrative Law Judge dismissed this logic. Here is why the Petitioner’s claim for mold testing reimbursement failed:

  • Strategic Mitigation vs. Admission of Fault: The Association likely stepped in to mitigate damage to shared structural elements. The judge found no legal authority suggesting that an HOA’s choice to facilitate repairs creates a binding obligation to pay for an owner’s private, ancillary expenses.
  • The 10.5 vs. 14.2 Distinction: The Petitioner attempted to cite Section 10.5, which involves the Association’s role in arbitrating disputes. However, the judge clarified that Section 10.5 applies to Common Areas. Because this was a Party Wall dispute between two owners, Section 14.2 was the only relevant rule.
  • The "Preponderance of Evidence" Burden: In legal disputes, the Petitioner bears the "Burden of Proof." The judge used the definition from Black’s Law Dictionary, noting that the Petitioner must provide evidence with "convincing force" that inclines an impartial mind to their side. Since the Petitioner "could cite no provision in the CC&Rs" to shift the cost of testing to the Association, she failed this standard.
  • A Note on Accuracy: While the Judge’s final conclusion (Finding #5) mistakenly references Unit 218, the established facts of the case (Finding #6) confirm Unit 216 was the source. This minor clerical discrepancy did not change the reality: the upstairs owner, not the HOA, was the liable party.
5. Key Takeaways for Condo Owners

This case is a vital reminder that the HOA is a community manager, not a free insurance policy for individual negligence.

  1. Identify the Source of Origin Immediately: Determining exactly where a leak started is the only way to trigger Section 14.2.
  • Consultant’s Tip: Always secure a written plumber’s report that identifies the "point of origin" before any walls are closed back up. Without this evidence, you cannot hold a neighbor accountable.
  1. Audit Your Governing Documents for "Party Wall" Specifics: Do not assume every wall is a "common element." Knowing the difference between Section 10.5 (Common Areas) and Section 14.2 (Party Walls) can save you thousands in legal fees.
  2. Understand the "Voluntary Act" Logic: If your HOA offers to help with remediation, they are likely doing so to protect the building's shell and prevent a larger insurance claim. This is a protective measure for the community, not an admission of guilt.
  3. Owner-to-Owner Liability: Recognize that many interior leaks are private civil matters between two unit owners. The HOA is often a bystander, even if they provide the plumber who finds the leak.
6. Conclusion: The Final Verdict

The Administrative Law Judge ultimately ordered the petition dismissed. The ruling was clear: the water damage was caused by the upstairs owner's improperly installed appliance. Under the CC&Rs, the Association had no duty to pay for the repairs in the first place, and certainly no duty to reimburse the Petitioner for her private testing.

Living in a community association requires a sophisticated understanding of where your property rights—and your liabilities—begin. While an HOA will often act to preserve the integrity of the building, the ultimate financial responsibility for "neighbor-to-neighbor" damage rests with the person who caused it. Read your CC&Rs, document everything, and remember: a helping hand from the board is not a blank check for your private expenses.

Case Participants

Petitioner Side

  • Bonnie Senftner (Petitioner)
    Owner of LLC that owns unit 116
  • Michael Senftner (Witness)
    Husband of Petitioner

Respondent Side

  • Shlomit Gruber (Respondent Attorney)
    Resnick & Louis, P.C.
    Counsel for Desert Wind Condominium Association
  • Harman Cadis (Witness)
    Focus HOA Management

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Listed on mailing distribution
  • Felicia Del Sol (Administrative Staff)
    Mailed/processed the order

Colonia Del Rey Homeowners Association v. Gregory Czekaj

Posted on by

Case Summary

Case ID 19F-H1918040-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-07-08
Administrative Law Judge Kay Abramsohn
Outcome Petitioner failed to prove HOA violated records, voting, or notice statutes. HOA failed to prove Petitioner violated Bylaws by misrepresenting himself as an officer.
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gregory L. Czekaj Counsel Gary Wolf
Respondent Colonia Del Rey HOA, Inc. Counsel Carolyn Goldschmidt

Alleged Violations

A.R.S. § 33-1805
A.R.S. § 33-1812(A)
A.R.S. § 33-1804(B)
Bylaws Sections 6.1, 7.1, 9.2

Outcome Summary

Petitioner failed to prove HOA violated records, voting, or notice statutes. HOA failed to prove Petitioner violated Bylaws by misrepresenting himself as an officer.

Why this result: Petitioner's interpretations of statutes regarding notice and voting were incorrect, and HOA complied with records requests. HOA lacked evidence for its claim against Petitioner.

Key Issues & Findings

Failure to provide records

Petitioner alleged HOA failed to provide requested organizational, business, corporate, and financial records.

Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Invalid fee increase due to proxy vote

Petitioner alleged a $5 fee increase was invalid because a proxy vote was used in violation of statutes and rules.

Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Failure to provide ten-day meeting notice

Petitioner alleged HOA failed to give ten-day notice for a meeting to vote on Bylaws amendments.

Orders: The HOA was deemed the prevailing party. Petitioner bears his filing fees.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Petitioner exceeded rights as member

HOA alleged Petitioner misrepresented himself as an officer to obtain insurance and tax information.

Orders: The HOA did not prevail. HOA bears its filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_win

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Video Overview

Audio Overview

Decision Documents

19F-H1919054-REL Decision – 720897.pdf

Uploaded 2026-04-24T11:19:52 (224.6 KB)

19F-H1919054-REL Decision – 720897.pdf

Uploaded 2026-02-11T06:34:36 (224.6 KB)

Administrative Law Judge Decision: Czekaj v. Colonia Del Rey HOA, Inc.

Executive Summary

On July 8, 2019, the Arizona Office of Administrative Hearings issued a decision regarding a multi-faceted dispute between Gregory L. Czekaj (Petitioner) and Colonia Del Rey HOA, Inc. (Respondent). The proceedings consolidated four separate complaints: three filed by the Petitioner regarding records access, voting validity, and meeting notices, and one filed by the HOA alleging the Petitioner misrepresented himself as an officer to third-party entities.

The Administrative Law Judge (ALJ) ruled overwhelmingly in favor of the HOA. The HOA was deemed the prevailing party in three of the four complaints. The ALJ concluded that the HOA had fulfilled its statutory obligations regarding records disclosure and meeting notices and that a contested $5.00 assessment increase was legally valid. Regarding the fourth complaint, neither party prevailed, as the evidence was insufficient to prove the Petitioner had intentionally misrepresented himself, though the ALJ noted the Petitioner was "mistaken" in his belief that individual members possess board-level administrative authority.

Detailed Analysis of Key Themes

1. Statutory Obligations vs. Member Demands for Records

A central theme of the dispute was the interpretation of A.R.S. § 33-1805, which governs the inspection of association records. The Petitioner argued that the HOA "withheld" documents, while the HOA maintained that the Petitioner's requests were overly broad and burdensome.

  • Burdensome Requests: The ALJ determined that the Petitioner’s request to review "any and all" documents since 1984 was inherently burdensome for a small, volunteer-run HOA with no central office.
  • Response Standards: The ruling clarified that associations are permitted to ask members to narrow their requests. Once a member provides clarification and acknowledges receipt (e.g., saying "thank you"), the HOA is justified in considering the request fulfilled until a new, specific request is made.
  • Electronic Disclosure: The HOA’s provision of electronic documents at no cost was found to be an appropriate response to records requests, fulfilling the statutory requirement for reasonable availability.
2. Validity of Governance and Voting Procedures

The Petitioner challenged a $5.00 monthly assessment increase (from $75 to $80) based on the initial use of an illegal proxy vote.

  • Correction of Errors: Although a proxy vote was initially and incorrectly counted, the HOA subsequently corrected the tally.
  • Defining "Votes Cast": The ALJ found that under the HOA’s CC&Rs, the requirement for a 2/3 majority applies to the "votes cast" by those present, not 2/3 of the total membership. With 6 members present, a vote of 5 YES and 1 NO (83.3%) exceeded the required 2/3 threshold (4 votes), rendering the increase valid regardless of the discarded proxy.
  • Record Retention: The destruction of original ballots after one year was found to be in compliance with the HOA’s one-year record retention policy and A.R.S. § 33-1812(A)(7).
3. Standards for Meeting Notices

The dispute highlighted a common member misconception regarding notice periods. The Petitioner argued that a meeting was invalid because he did not receive the notice 10 days in advance.

  • Mailing vs. Receipt: The ALJ clarified that A.R.S. § 33-1804(B) requires the HOA to "cause notice to be hand-delivered or sent" at least 10 days prior to a meeting. The law does not mandate that the member receive the notice within that timeframe.
  • Validity: The ruling confirmed that a member's failure to receive actual notice does not invalidate the actions taken at a meeting, provided the HOA can demonstrate the notice was sent (e.g., through testimony or mailing records).
4. Limits of Member Authority

The final theme involved the boundaries between individual member rights and Board administrative authority. The Petitioner attempted to contact the HOA’s insurance agent and the IRS to obtain sensitive information, such as the HOA’s Taxpayer Identification Number (TIN).

  • Administrative Rights: The ALJ concluded that HOA Bylaws vest management and administrative authority exclusively in the Board of Directors.
  • The "Right to Enforce": The Petitioner argued that CC&R provisions allowing owners to "enforce" restrictions gave him the right to contact vendors and the IRS. The ALJ rejected this, stating that the right to enforce allows a member to petition the Board or seek legal remedy, but does not bestow board-level administrative powers upon individual homeowners.

Analysis of Complaints and Outcomes

Complaint Number Subject Matter Primary Allegation Prevailing Party
One Records Access HOA withheld requested financial and corporate records. HOA
Two Assessment Vote A $5.00 fee increase was invalid due to the use of a proxy vote. HOA
Three Meeting Notice HOA failed to provide 10-day notice for a Bylaw amendment meeting. HOA
Four Misrepresentation Petitioner allegedly posed as an HOA officer to the IRS and insurance agent. Neither

Important Quotes with Context

On Burdensome Record Requests

"The Administrative Law Judge concludes that the request, as stated, was burdensome and needed to be clarified given that the HOA has been in existence since 1984, has no office, and various persons have been officers over the past years." (Finding 62)

Context: The ALJ rejected the Petitioner's claim that the HOA was "withholding" information, noting that the HOA acted reasonably by asking the Petitioner to narrow his broad request for all documents since the association's inception.

On the Definition of Statutory Notice

"The Administrative Law Judge concludes that Petitioner’s argument fails that the notice packages had to be 'received' more than ten days prior to the meeting; such a position is a misreading of the statutory requirement." (Finding 68)

Context: This quote addresses Complaint Three, establishing that the legal standard for notice is the act of mailing or sending, not the confirmed receipt by the homeowner.

On Member Privileges vs. Board Authority

"Petitioner is mistaken if he believes that he, as a member, may undertake to dictate or manage actions of the Board. The HOA Bylaws do not vest any of the Board’s authority in the members." (Finding 71)

Context: The ALJ used this statement to clarify that while members have the right to review records and vote, they do not have the right to perform administrative tasks, such as contacting the IRS or HOA vendors on behalf of the association.

Actionable Insights

For Homeowners Association Boards
  • Formalize Record Requests: Require members to clarify broad requests. Document all responses and utilize electronic delivery to satisfy statutory requirements for "reasonable availability" at minimal cost.
  • Correct Procedural Errors Promptly: As seen in the assessment vote, an initial procedural error (like an improper proxy) does not necessarily invalidate an action if the corrected tally still meets the required legal threshold.
  • Maintain Proof of Mailing: Ensure the Secretary maintains records of when meeting notices are sent. Under A.R.S. § 33-1804(B), proving the date of mailing is the standard for legal compliance, not proof of delivery.
For Homeowners
  • Distinguish Between "Review" and "Manage": Members have a statutory right to review records, but this does not grant them the authority to act as an agent of the HOA or manage its business affairs (e.g., contacting the IRS).
  • Understand Voting Thresholds: Carefully review CC&Rs to determine if a required majority applies to the entire membership or only the votes cast by those present at a meeting where a quorum is met.
  • Verify Statutory Timelines: Be aware that "notice" is legally defined by the date the HOA initiates delivery, not the date the mail is received. Failing to receive mail does not legally excuse a member from the outcomes of a meeting.

Study Guide: Czekaj v. Colonia Del Rey HOA Administrative Case

This study guide provides a comprehensive overview of the administrative hearing between Gregory L. Czekaj (Petitioner/Homeowner) and Colonia Del Rey HOA, Inc. (Respondent/HOA), heard by the Arizona Office of Administrative Hearings on June 14, 2019. It examines the legal requirements for homeowners' associations regarding records access, voting procedures, meeting notices, and the limitations of member authority.

I. Case Overview

  • Case Numbers: 19F-H1918040-REL and 19F-H1919054-REL.
  • Parties: Gregory L. Czekaj, a homeowner since March 2017, and Colonia Del Rey HOA, Inc., a nine-home association established in 1984.
  • Central Issues: Alleged violations of Arizona Revised Statutes (A.R.S.) regarding records requests, voting irregularities, and meeting notice timelines, as well as an HOA allegation regarding a member's unauthorized use of authority.

II. Key Legal Concepts and Statutory Interpretations

1. Access to HOA Records (A.R.S. § 33-1805)
  • Availability: All financial and other records must be made reasonably available for examination.
  • Timeline: The HOA has ten (10) business days to fulfill a written request.
  • Costs: Statutes do not require an HOA to provide copies at no cost. The HOA may charge up to 15 cents per page for copies, which must be reimbursed upon delivery.
  • Scope: Requests must be specific. Requests to review "all documents" may be considered burdensome, especially for older associations without formal offices.
2. Meeting Notices (A.R.S. § 33-1804(B))
  • Timing: Notice must be provided not fewer than ten (10) days in advance of a meeting.
  • Legal Requirement: The statute requires the HOA to "cause notice to be hand-delivered or sent prepaid by [U.S.] mail."
  • Receipt vs. Sending: The legal obligation is satisfied when the notice is sent. The validity of actions taken at a meeting is not affected if a member fails to receive the actual notice, provided the HOA followed the sending procedures.
3. Voting and Proxies (A.R.S. § 33-1812)
  • Proxies: Arizona state law and specific HOA resolutions (e.g., Resolution 20140315-01) may prohibit the use of proxy votes.
  • Absentee Ballots: These are acceptable and may be cast via email if permitted by the association.
  • Quorum and Thresholds:
  • A quorum is often met by the presence of members entitled to cast 50% of the votes.
  • Assessments exceeding 10% of the previous year's amount may require a two-thirds (2/3) vote of those voting (not 2/3 of the entire membership).
4. Member vs. Board Authority
  • Member Privileges: Under HOA Bylaws (Section 3.1), privileges are limited to voting, holding office, and enjoying common areas.
  • Management Rights: Business affairs are managed by the Board of Directors (Section 6.1). Members do not possess administrative rights, authority, or responsibility to manage vendors, contractors, or government agencies (like the IRS) on behalf of the HOA.
  • Enforcement Rights: While CC&Rs may allow an owner to "enforce" restrictions (Article XIV, Section 1), this typically means the right to petition the Board to act, rather than the right to assume Board duties.

III. Short-Answer Practice Questions

  1. How many business days does an HOA have to fulfill a written records request under A.R.S. § 33-1805(A)?
  2. Does a member’s failure to receive a meeting notice invalidate the actions taken at that meeting? Explain why or why not.
  3. According to the ALJ decision, what is the maximum fee an HOA can charge per page for copies of records?
  4. In the context of the $5 assessment increase, how was the two-thirds (2/3) majority calculated?
  5. Why was the proxy vote cast for Ed Freeman eventually disregarded in the final tabulation of the May 2017 vote?
  6. Under the Colonia Del Rey Bylaws, who is responsible for the management of the HOA's business affairs?
  7. What was the Petitioner’s argument regarding his right to contact the IRS and the HOA’s insurance agent?
  8. What constitutes a "preponderance of the evidence" in an administrative hearing?

IV. Essay Prompts for Deeper Exploration

  1. The Tension Between Transparency and Burdensome Requests: Analyze the ALJ's conclusion regarding Complaint One. How should an HOA balance its statutory duty to provide records with the practical limitations of being a small, volunteer-run organization without a physical office?
  2. Statutory Interpretation of "Notice": Discuss the legal distinction between "causing notice to be sent" and the member's "actual receipt" of notice. Why is this distinction vital for the administrative functioning of a homeowners' association?
  3. The Limits of Homeowner Enforcement Rights: Petitioner argued that CC&R Article XIV gave him the right to enforce rules, which he interpreted as authority to contact vendors and the IRS. Critique this interpretation based on the ALJ’s findings regarding the separation of member privileges and Board authority.
  4. Validity of HOA Actions: Evaluate the May 6, 2017, assessment vote. Even though the HOA initially provided incorrect information on the ballot (stating 6 votes were needed) and allowed an invalid proxy, the ALJ upheld the vote. Explain the legal reasoning that allowed the vote to stand.

V. Glossary of Important Terms

  • A.R.S. § 33-1804(B): The Arizona statute governing the requirements and timelines for notifying members of HOA meetings.
  • A.R.S. § 33-1805: The Arizona statute mandating that HOA financial and other records be made reasonably available to members.
  • Absentee Ballot: A ballot cast by a member who is not physically present at a meeting; in this case, permitted via email.
  • Administrative Law Judge (ALJ): A judge who presides over hearings and makes decisions in cases involving government agency rules or specialized statutes (e.g., the Department of Real Estate).
  • Bylaws: The rules governing the internal management of the HOA, including the duties of the Board and the rights of members.
  • CC&Rs (Covenants, Conditions, and Restrictions): The legal documents that lay out the guidelines for the community and the rights/obligations of the homeowners.
  • Preponderance of the Evidence: The legal standard of proof in this case, meaning that a claim is "more probably true than not."
  • Proxy Vote: A vote cast by one person on behalf of another. In this case, the ALJ confirmed that such votes were prohibited by state law and HOA resolution.
  • Quorum: The minimum number of members who must be present (in person or by absentee ballot) at a meeting to make the proceedings of that meeting valid.
  • Ramada: A common area structure in the Colonia Del Rey HOA used for records review and meetings.
  • TIN (Taxpayer Identification Number): A unique number used by the IRS to identify a business entity or organization like an HOA.

Lessons from the Courtroom: A Homeowner’s Legal Challenge to HOA Governance

1. Introduction: Small Association, Big Legal Stakes

The legal landscape of homeowner associations (HOAs) often involves sprawling master-planned communities with hundreds of residents. However, the case of Gregory L. Czekaj v. Colonia Del Rey HOA, Inc. (No. 19F-H1918040-REL) serves as a potent reminder that legal stakes remain high regardless of community size.

Colonia Del Rey is a micro-community in Tucson, Arizona, consisting of just nine homes on a private road. It has no central office and no pool, and its Board is comprised entirely of elected volunteers. Yet, this tiny association found itself before the Office of Administrative Hearings defending its governance against four separate complaints from a single homeowner. As a legal analyst, I find this case particularly instructive because the Administrative Law Judge’s (ALJ) decision provides a definitive roadmap for record requests, voting thresholds, and the strict boundaries of homeowner authority versus Board management.

2. Record Requests: "Burdensome" vs. "Legal Right"

In Complaint One, the Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to provide requested records. The conflict began when the Petitioner issued a sweeping request to review "any and all" association documents. The HOA President initially pushed back, labeling the request "burdensome" and asking for specificity—a move the Tribunal later interpreted as a reasonable administrative response for a small, volunteer-run entity.

The following table analyzes the friction between the Petitioner’s allegations and the HOA’s documented compliance:

Petitioner’s Allegations HOA’s Documented Responses & Legal Context
Withholding Organizational Docs: Claimed the HOA failed to provide current Articles of Incorporation, forcing him to pay $54 to the state for them. Fulfilled Electronically: The HOA provided the Articles, Bylaws, and CC&Rs via email on May 14. The Tribunal ruled the request was satisfied once the member replied "thank you."
Incomplete Financial Review: Alleged tax returns and insurance policies were missing during a November 23 records review. Coordinated Access: The HOA facilitated a two-hour review session. Remaining records (tax returns/invoices) were emailed on Nov 30 after being finalized by the CPA.
Access to Physical Copies: Challenged the logistics of obtaining hard copies of the records reviewed. Governance Rule: Per A.R.S. § 33-1805(A), HOAs may charge up to 15 cents per page for copies and have 10 business days to produce them after a specific request is made.

Analyst’s Note: The ALJ concluded the HOA complied with the law because they provided records within 10 business days of the Petitioner clarifying his broad request. For boards, the takeaway is clear: broad requests can be legally treated as burdensome, but once specified, the statutory clock starts.

3. The $5 Assessment Increase: Navigating Voting Math

Complaint Two challenged a 2017 vote that raised monthly assessments from $75 to $80. The Petitioner argued the vote was invalid because a proxy was cast for a tenant (Ed Freeman), which violated both A.R.S. § 33-1812(A) and the HOA’s own policies.

While the proxy vote was indeed improper and eventually discarded, the Tribunal’s analysis of the "Math of Governance" is where the most critical professional insight lies. Many associations struggle to distinguish between a "majority of all members" and a "majority of votes cast."

  • The Voting Requirement: Under Article IV, Section 5(b) and (f) of the CC&Rs, the increase required approval by 2/3 of the votes cast—not 2/3 of the total membership.
  • The Final Valid Tally: After discarding the invalid proxy and accounting for eligible members present, the count was 5 "YES" and 1 "NO."
  • The Calculation: 5 (Yes) / 6 (Total) = 83.3% Approval.

Governance Tip: Because the 83.3% approval rate comfortably exceeded the 66.6% (2/3) threshold, the Judge ruled the assessment increase valid. Associations must meticulously check their CC&Rs to see if thresholds apply to "total membership" or "votes cast," as this distinction often saves a vote from failure due to low turnout.

4. The Notice Requirement: "Sent" vs. "Received"

In Complaint Three, the Petitioner sought to invalidate Bylaw amendments, claiming he received the meeting notice only nine days before the vote—one day short of the 10-day requirement in A.R.S. § 33-1804(B).

The Tribunal’s interpretation reinforces a vital legal standard: The law requires the HOA to "cause notice" (hand-deliver or mail) at least 10 days in advance; it does not require the HOA to guarantee the date of receipt by the member.

The HOA Secretary proved that notice packages were mailed on November 5 for the November 18 meeting (13 days prior). Furthermore, the Board utilized a "multi-channel" approach by emailing the notice on November 4. The Judge clarified that a member's failure to receive actual notice does not invalidate the meeting's actions, provided the HOA initiated the mailing within the statutory window.

5. The Limits of Membership: You are an Owner, Not an Officer

The most contentious conflict (Complaint Four) involved the Petitioner contacting the HOA’s insurance agent and the IRS to obtain the association’s Taxpayer Identification Number (TIN). The HOA filed a police report, citing fiduciary responsibility after the IRS suggested the inquiry could indicate potential identity theft.

The Judge used this as a teaching moment regarding the hierarchy of authority:

  • Privileges vs. Administrative Rights: A member’s privileges (voting, holding office, using common areas) do not grant "administrative rights."
  • The Enforcement Misconception: The Petitioner cited Article XIV, Section 1 of the CC&Rs, which gives owners the right to "enforce" restrictions. The Judge ruled this only allows an owner to petition the Board to take action—it does not authorize a homeowner to manage vendors, contact insurance agents, or engage with the IRS on the association’s behalf.

Analyst’s Note: The Judge noted the Petitioner was "propelled by certain motives" (personal disagreement with Board policy) rather than statutory violations. Neither party prevailed on this complaint because there was no "preponderance of evidence" of intentional misrepresentation, but the legal warning was clear: ownership does not equal agency.

6. Conclusion: Key Takeaways for HOA Members and Boards

The Final Order deemed the HOA the prevailing party on three out of four complaints. Under A.R.S. § 32-2199, the Petitioner bore the burden of proof—he had to prove his claims were "more probably true than not." His failure to do so highlights the importance of evidence over grievance.

Critical Takeaways for HOA Governance:

  1. Clarity in Record Requests: Overly broad "any and all" requests are often deemed burdensome. Boards should provide access but can insist on specificity to manage limited volunteer resources.
  2. Statutory Compliance over Perception: For meeting notices, the legal benchmark is the date the notice is sent. Associations should document mailing dates (and utilize email as a backup) to provide a "belt and suspenders" defense against notice claims.
  3. Respect the Governance Hierarchy: While owners have a right to review records, they have no authority to manage the association’s administrative affairs. A board’s fiduciary duty includes protecting sensitive data like the TIN from unauthorized member inquiries.

In the end, this case demonstrates that even in a community of nine homes, a deep understanding of Arizona Revised Statutes (A.R.S.) and the specific language of the CC&Rs is the only way to navigate—and successfully resolve—the complexities of HOA governance.

Case Participants

Petitioner Side

  • Gregory L. Czekaj (petitioner)
    Homeowner
    Appeared on his own behalf; also Respondent in consolidated counter-claim
  • Gary Wolf (petitioner's attorney)
    Contacted HOA attorney regarding records request

Respondent Side

  • Marybeth Andree (HOA President)
    Colonia Del Rey HOA, Inc.
    Represented the HOA; testified at hearing
  • Carolyn Goldschmidt (HOA attorney)
    Responded to Petitioner's attorney regarding records
  • Sarah Hitch (proxy holder)
    Colonia Del Rey HOA, Inc.
    Member who cast a proxy vote for Ed Freeman
  • Phil Oliver (board member)
    Colonia Del Rey HOA, Inc.
    Provided email clarification regarding the vote; wrote letter regarding irregularities
  • Susan Sotelo (HOA secretary)
    Colonia Del Rey HOA, Inc.
    Mailed the ballots for the meeting

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge presiding over the hearing
  • Mr. Tick (witness)
    State Farm (implied)
    HOA insurance agent; testified regarding Petitioner's request for policy
  • Ed Freeman (tenant)
    Tenant living in Oregon; subject of proxy vote dispute
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the transmitted order

Peter de Scheel vs. Sandpiper Scottsdale Association, Inc.

Posted on by

Case Summary

Case ID 19F-H1919048-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-06-19
Administrative Law Judge Velva Moses-Thompson
Outcome The ALJ granted the petition, finding that the HOA violated the CC&Rs. The evidence established that architectural beams are part of the 'exterior' which the Association must maintain, rather than the 'roof' which is excluded from Association maintenance. The HOA failed to prove by a preponderance of the evidence that beams were part of the roof.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Peter de Scheel Counsel —
Respondent Sandpiper Scottsdale Association, Inc. Counsel Bradley R. Jardine

Alleged Violations

Article V Section 1; Article VI Section 1(c)

Outcome Summary

The ALJ granted the petition, finding that the HOA violated the CC&Rs. The evidence established that architectural beams are part of the 'exterior' which the Association must maintain, rather than the 'roof' which is excluded from Association maintenance. The HOA failed to prove by a preponderance of the evidence that beams were part of the roof.

Key Issues & Findings

Exterior Maintenance Responsibility (Architectural Beams)

Petitioner alleged the HOA violated CC&Rs by requiring him to repair architectural beams. The dispute centered on whether beams were part of the 'roof' (owner responsibility) or 'exterior' (HOA responsibility).

Orders: Respondent shall reimburse Petitioner the $500.00 filing fee. Respondent is responsible for the repair and maintenance of architectural beams.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Article V Section 1
  • Article VI Section 1(c)

Video Overview

Audio Overview

Decision Documents

19F-H1919048-REL Decision – 716710.pdf

Uploaded 2026-04-24T11:19:18 (103.6 KB)

19F-H1919048-REL Decision – 716710.pdf

Uploaded 2026-01-27T21:16:30 (103.6 KB)

Administrative Law Judge Decision: de Scheel v. Sandpiper Scottsdale Association, Inc.

Executive Summary

This briefing document analyzes the administrative decision in the matter of Peter de Scheel vs. Sandpiper Scottsdale Association, Inc. (No. 19F-H1919048-REL). The dispute centered on whether the Sandpiper Scottsdale Association (the Respondent) or the homeowner, Peter de Scheel (the Petitioner), was responsible for the repair and maintenance of architectural wood beams on the Petitioner’s property.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Petitioner. The decision determined that under the Association's Covenants, Conditions, and Restrictions (CC&Rs), architectural wood beams are classified as part of the "exterior building surfaces," which the Association is obligated to maintain. The Association's argument that the beams were part of the roof—an item specifically excluded from Association maintenance—was rejected. As a result, the Association was ordered to cease requiring the Petitioner to perform these repairs and to reimburse his $500 filing fee.

Analysis of Key Themes

1. Interpretation of Maintenance Obligations under CC&Rs

The core of the legal dispute rested on the interpretation of Article V, Section 1 and Article VI, Section 1(c) of the Respondent’s CC&Rs.

  • Association Obligations: The CC&Rs mandate that the Association provide exterior maintenance for each "Improved Lot." This includes painting, repairing, replacing, and caring for "exterior building surfaces and other such exterior improvements."
  • Specific Exclusions: The CC&Rs list specific items for which the Association is not responsible. These include:
  • Roofs (except for Condominium Lots).
  • Glass surfaces, air conditioning units, and landscaping (trees, shrubs, grass).
  • Walks, driveways, and parking areas.
  • Improvements within a patio or enclosed yard.

The Petitioner successfully argued that because architectural wood beams were not specifically listed in these exclusions, they fell under the general category of "exterior building surfaces" maintained by the Association.

2. The Distinction Between "Roof" and "Architectural Beams"

The Respondent attempted to classify the architectural beams as part of the "roof" to trigger the maintenance exclusion. However, the ALJ found this argument inconsistent with the Association's own communications. Both the community manager and the Board President had issued communications (newsletters and emails) that listed "roofs" and "architectural beams" as separate items.

The Judge concluded that the Respondent failed to prove by a preponderance of the evidence that architectural beams are legally or functionally part of the roof. Instead, the evidence supported the conclusion that they are exterior building surfaces.

3. Burden of Proof and Evidentiary Standards

The case was decided based on the preponderance of the evidence—meaning the proof showed the Petitioner’s contention was "more probably true than not."

  • Petitioner’s Burden: To establish that the Association violated the CC&Rs by shifting maintenance responsibility to the homeowner.
  • Respondent’s Burden: To establish affirmative defenses (e.g., that the beams were part of the roof and thus excluded from Association maintenance).

The court found the Petitioner met his burden, while the Respondent did not provide sufficient evidence to support its reclassification of the beams.

4. Association Classification (Planned Unit Development vs. Condominium)

A secondary theme involved the legal nature of the Association. While the CC&Rs contained language regarding "Condominium Lots," the Board President testified that the development is a Planned Unit Development (PUD) and never met the criteria for a condominium association because a "declaration of horizontal property regime" was never submitted. This distinction influenced the application of Article V, Section 1, which has different roof maintenance rules for Condominium Lots versus standard Improved Lots.

Important Quotes with Context

Quote Context
"The Association shall provide exterior maintenance upon each Improved Condominium Lot and Improved Lot… as follows: paint, repair, replace and care for exterior building surfaces." Article V, Section 1 of the CC&Rs. This serves as the primary basis for the Association's duty to maintain the exterior of the homes.
"Such exterior maintenance shall not include roofs, except in the case of Improved Condominium Lots." Article V, Section 1 of the CC&Rs. This is the specific exclusion the Association attempted to use to avoid responsibility for the beams.
"Please remember that our CC&Rs require each owner to maintain their property including driveways, roofs, architectural beams and posts…" Newsletter/Email from Respondent. This internal communication was used as evidence against the Association, as it listed roofs and beams as separate entities.
"Respondent did not establish by a preponderance of the evidence that the architectural beams are a part of the roof." ALJ Conclusion of Law. The Judge's final determination on the Association's primary defense.
"Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein." Legal Standard cited by the ALJ. Explains the methodology used to interpret the Association's governing documents.

Actionable Insights

For Homeowners’ Associations (HOAs)
  • Consistency in Communication: Associations must ensure that newsletters and informal communications do not contradict or broaden the scope of the CC&Rs. By listing "beams" separately from "roofs" in a newsletter, the Association undermined its own legal argument that beams were part of the roof.
  • Definition of Exclusions: If an Association intends for specific exterior elements (like beams or posts) to be the owner's responsibility, those items should be explicitly listed in the "Exclusions" section of the CC&Rs.
  • Historical Practice vs. Written Code: The Association argued that homeowners had "historically" repaired roofs. However, historical practice does not override unambiguous language in the CC&Rs regarding "exterior building surfaces."
For Homeowners
  • Reviewing Specific CC&R Articles: When faced with a repair notice, homeowners should cross-reference the specific repair requested against the "Exterior Maintenance" sections of their CC&Rs.
  • Identifying Omissions: If a specific architectural feature is not listed in the "Association shall not maintain" list, there is a strong legal argument that it remains the Association's responsibility as an "exterior surface."
Legal Implications
  • Reimbursement of Fees: Under A.R.S. § 32-2199.02(B), if an Association is found in violation of its governing documents, it may be ordered to reimburse the Petitioner’s filing fees ($500 in this case).
  • Binding Nature: The ALJ’s order is binding unless a rehearing is granted by the Commissioner of the Department of Real Estate within 30 days.

Study Guide: de Scheel v. Sandpiper Scottsdale Association, Inc.

This study guide provides a comprehensive overview of the administrative law case Peter de Scheel v. Sandpiper Scottsdale Association, Inc. (No. 19F-H1919048-REL). It covers the legal disputes regarding homeowner association (HOA) maintenance responsibilities, the interpretation of restrictive covenants, and the evidentiary standards used in Arizona administrative hearings.

1. Case Overview and Background

Core Dispute

The primary issue in this case was determining whether the homeowner (Petitioner) or the Homeowners Association (Respondent) was responsible for the repair and maintenance of disintegrating architectural wood beams.

  • Petitioner: Peter de Scheel, a homeowner in the Sandpiper Scottsdale Association.
  • Respondent: Sandpiper Scottsdale Association, Inc., a planned unit development.
  • Initial Action: In August 2018, the HOA notified the Petitioner that he must repair his architectural wood beams by December 25, 2018. The Petitioner argued the HOA was responsible under the community's governing documents.
Legal Context

The case was heard by the Office of Administrative Hearings under the authority of the Arizona Department of Real Estate (ADRE). Per A.R.S. § 32-2199(B), the ADRE is authorized to decide petitions regarding violations of planned community documents.

2. Key Legal Concepts

The Burden of Proof

In this administrative matter, the Petitioner held the burden of proof to establish a violation of the Covenants, Conditions, and Restrictions (CC&Rs) by a preponderance of the evidence.

  • Definition: A preponderance of the evidence means that the contention is "more probably true than not" or possesses "superior evidentiary weight."
  • Affirmative Defenses: The Respondent bears the burden to establish any affirmative defenses using the same standard.
Interpretation of CC&Rs

Arizona law requires that unambiguous restrictive covenants be enforced to give effect to the intent of the parties. Covenants must be:

  1. Construed as a whole.
  2. Interpreted in view of their underlying purposes.
  3. Evaluated to give effect to all provisions contained within them.
Governing CC&R Articles

The case centered on the following provisions from the Sandpiper Scottsdale Association CC&Rs:

Provision Title Key Language/Requirement
Article V, Section 1 Exterior Maintenance The Association shall provide exterior maintenance upon each Improved Lot (paint, repair, replace exterior building surfaces).
Article VI, Section 1(c) Duties and Powers The Association shall maintain the exterior of Living Units subject to the limitations in Article V.
Article I, Section 9 Definitions Defines "Lot" and "Improved Lot" (a lot with a completed single-family residence).

3. Evidence and Testimony

Arguments for the Homeowner (Petitioner)
  • Architectural beams are part of the exterior building surface.
  • Article V, Section 1 does not list "architectural beams" as an exception to the Association’s maintenance duties.
  • While roofs are an exception, architectural beams are distinct from the roof.
Arguments for the Association (Respondent)
  • Historical Practice: The Association has consistently required homeowners to repair beams for years.
  • Roof Categorization: The Board President argued that architectural beams are functionally part of the roof (which homeowners are responsible for maintaining).
  • Association Status: Although the CC&Rs mention "condominiums," the Association argued it is a planned unit development because no declaration of horizontal property regime was ever submitted.
Findings of the Administrative Law Judge (ALJ)

The ALJ determined that the Association failed to prove that architectural beams are part of the roof. Because the CC&Rs specifically distinguished roofs from architectural beams in newsletters and failed to list beams as an exception in Article V, the Association was found responsible for their maintenance.

4. Short-Answer Practice Questions

  1. What was the specific deadline given to the Petitioner to repair the wood beams?
  • Answer: December 25, 2018.
  1. According to Article V, Section 1, what are the specific exceptions to the Association's exterior maintenance responsibility?
  • Answer: Roofs (except for Improved Condominium Lots), glass surfaces, air conditioning units, trees, shrubs, grass, walks, driveways, parking areas, landscaping, and improvements within patio or enclosed yard spaces.
  1. What amount was the Respondent ordered to reimburse the Petitioner following the decision?
  • Answer: $500.00 (the filing fee for the petition).
  1. Who served as the Administrative Law Judge for this case?
  • Answer: Velva Moses-Thompson.
  1. How does Article I, Section 9 define an "Improved Lot"?
  • Answer: A Lot upon which has been completed a single-family residence.
  1. Under what Arizona Revised Statute is the Order binding on the parties?
  • Answer: A.R.S. § 32-2199.02(B).

5. Essay Prompts for Deeper Exploration

  1. The Role of Historical Practice vs. Written Contract: Analyze the Association's argument that they had "consistently required" homeowners to repair beams since 1984. Why did the ALJ prioritize the written text of the CC&Rs over the historical testimony of the community managers?
  2. Ambiguity in Restrictive Covenants: The Respondent argued that architectural beams should be considered part of the roof. Discuss how the Association’s own communication (newsletters and emails) undermined this argument and how it impacted the ALJ’s determination that the beams were part of the "exterior."
  3. Condominium vs. Planned Unit Development: The CC&Rs describe a "planned residential area consisting of townhouses, interspersed condominiums and common area." However, testimony suggested the Association never met the criteria for a condominium. Explain how this distinction (or lack thereof) influenced the interpretation of maintenance responsibilities for roofs under Article V.

6. Glossary of Important Terms

  • A.R.S. § 32-2199: The Arizona statute granting the Department of Real Estate the authority to hear disputes between homeowners and associations.
  • CC&Rs (Covenants, Conditions, and Restrictions): The governing documents that outline the rules, requirements, and responsibilities of homeowners and the association within a development.
  • Declarant: The entity (usually the developer) that originally created the CC&Rs and the community.
  • Horizontal Property Regime: A legal structure required to officially establish a condominium; the Respondent argued this was never submitted.
  • Improved Lot: A plot of land within the subdivision that has a completed single-family residence.
  • Living Unit: A term used in the CC&Rs to refer to the individual residential structures within the development.
  • Preponderance of the Evidence: The evidentiary standard in civil and administrative cases requiring that a claim be more likely true than not.
  • Restrictive Covenant: A provision in a deed or a set of CC&Rs that limits or dictates the use of the property or the obligations of the owner.

Homeowner vs. HOA: Who Really Pays for Architectural Wood Beams?

1. Introduction: The High Stakes of HOA Maintenance

In the often-contentious world of planned communities, few things trigger a legal battle faster than a high-cost repair bill. For many homeowners, the relationship with their Homeowners’ Association (HOA) is a delicate balance of shared benefits and individual burdens. However, when an Association attempts to shift its maintenance obligations onto individual owners through creative—and often legally flawed—interpretations of governing documents, the stakes escalate from mere disagreement to a pivotal fight for property rights.

The case of Peter de Scheel vs. Sandpiper Scottsdale Association, Inc. serves as a landmark victory for homeowners facing arbitrary assessments. At the center of this dispute was a seemingly simple question: Who is responsible for "disintegrating" architectural wood beams? The outcome provides a masterclass in how to hold a Board accountable to the literal text of the law.

2. The "Beams of Contention": Background of the Dispute

The conflict began on August 21, 2018, when the Sandpiper Scottsdale Association (the Association) issued a formal notification to homeowner Peter de Scheel. The Association alleged that the architectural wood beams on his property were "disintegrating" and demanded their repair by December 25, 2018.

Mr. de Scheel, recognizing the financial implications of this demand, challenged the Board's authority. He argued that under the community’s Covenants, Conditions, and Restrictions (CC&Rs), the maintenance of these structural exterior elements was the Association's responsibility, not his. When the Association refused to yield, de Scheel took the necessary legal step to protect his interests: he filed a single-issue petition with the Arizona Department of Real Estate on February 14, 2019. He alleged a direct violation of Article V and Article VI of the CC&Rs, setting the stage for an evidentiary hearing to determine the boundaries of contractual obligation.

3. Decoding the CC&Rs: What the Rules Actually Say

As any seasoned legal analyst knows, the CC&Rs are the "constitution" of the community. In this case, the Administrative Law Judge (ALJ) focused on Article V, Section 1 and Article VI, Section 1(c) to determine where the Association’s duties ended and the Homeowner’s began.

The Association’s Maintenance Scope Per the CC&Rs, the Association is mandated to provide exterior maintenance upon each Improved Lot, specifically to:

  • Paint, repair, and replace exterior building surfaces.
  • Maintain and care for "other such exterior improvements."

The Explicit Exceptions The governing documents also provide a definitive list of items the Association is not responsible for. These exceptions are narrow and must be interpreted strictly:

  • Roofs (Except in the case of Improved Condominium Lots).
  • Glass surfaces and air conditioning units.
  • Landscaping, including trees, shrubs, and grass.
  • Walks, driveways, and parking areas.
  • Improvements built by an owner within a patio or enclosed yard space.

The Critical Omission Under the principle of contractual interpretation, what is not listed is often as important as what is. The ALJ noted that "architectural beams" were conspicuously absent from the list of exceptions. Furthermore, the definition of an "Improved Lot" in Article I, Section 13 made a clear distinction between a standard Lot and a Condominium Lot—a distinction that would later prove fatal to the Association’s defense.

4. The HOA’s Defense: A Failure of Legal Consistency

The Association’s defense strategy relied on a blend of witness testimony and a shifting legal identity. Witnesses Mary Lou Pace (Community Manager), Pamela L. Polo (Former Property Manager), and Carol Nesland (Board President) all attempted to argue that architectural beams should be classified as part of the "roof," thereby falling under the maintenance exception.

However, the Association struggled with its own legal standing. In its initial written answer to the petition, the Association claimed to be a condominium association. Yet, during the hearing, Board President Carol Nesland reversed this position, admitting the Association was actually a planned unit development (PUD). She conceded that the developers had never filed a "declaration of horizontal property regime"—the legal instrument required to create a condominium. Without this regime, the Association could not legally enforce the "roof" exception against Mr. de Scheel, as the CC&Rs only applied that exception to "Improved Condominium Lots."

Perhaps most damaging to the Association was its own history of communication. The Homeowner presented a January 2019 email from the Community Manager and a newsletter from the Board President that explicitly listed "roofs" and "architectural beams" as separate maintenance items. In legal terms, this constituted a "party admission." By distinguishing between the two in their own correspondence, the Association undermined their affirmative defense that the beams were merely an extension of the roof.

5. The Verdict: A Victory for Homeowner Clarity

The ALJ applied the "Preponderance of the Evidence" standard, which requires the evidence to show that a contention is "more probably true than not." While the Homeowner bore the initial burden of proving a violation, the Association bore the burden of proving its affirmative defense—that the beams fell under the roof exception.

The judge found the Association’s arguments unconvincing. The evidence demonstrated that the beams were exterior building surfaces, and the Association failed to prove they were legally part of the roof.

The Final Order On June 19, 2019, the ALJ ruled in favor of the Homeowner, Peter de Scheel. The Association was found in violation of the CC&Rs for attempting to force the Homeowner to repair the beams. In a final symbolic and financial victory for de Scheel, the judge ordered the Association to reimburse the Homeowner’s $500.00 filing fee.

6. Key Takeaways for Homeowners and Boards

This case serves as a vital reminder that an HOA's power is not absolute; it is strictly limited by its own governing documents.

  1. Specificity in CC&Rs is Mandatory: If an item is not explicitly listed as an exception to the Association’s maintenance duties, it generally remains the Association’s responsibility under "exterior building surfaces." Courts will not "read in" exceptions that aren't there.
  2. Internal Communications are Evidence: Newsletters and emails are not just community updates; they are legal records. When a Board separates items in a newsletter for "clarity," they may inadvertently create evidence that those items are legally distinct entities.
  3. The Burden of Affirmative Defenses: If an HOA claims a maintenance item is a homeowner’s responsibility based on an exception in the CC&Rs, the HOA bears the burden of proving that exception applies. A failure to maintain legal consistency—such as the "Condo vs. PUD" flip-flop seen here—can destroy the Board's credibility.

Homeowners should never accept a Board's demand for repair at face value. Before opening your wallet, conduct an audit of your CC&Rs. If the documents do not explicitly exempt the Association from maintaining a specific exterior element, the Law may be on your side.

Case Participants

Petitioner Side

  • Peter de Scheel (Petitioner)
    Homeowner
    Appeared on behalf of himself

Respondent Side

  • Bradley R. Jardine (Attorney)
    Jardine, Baker, Hickman & Houston, P.L.L.C.
    Attorney for Sandpiper Scottsdale Association, Inc.
  • Mary Lou Pace (Community Manager)
    Sandpiper Scottsdale Association, Inc.
    Witness; also referred to as Mary Loud Pace
  • Carol Nesland (Board President)
    Sandpiper Scottsdale Association, Inc.
    Witness; President of the Board of Directors
  • Pamela L. Polo (Former Property Manager)
    Sandpiper Scottsdale Association, Inc.
    Witness; manager from 1984 to 2015

Neutral Parties

  • Velva Moses-Thompson (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the transmitted order

Victor L Pattarozzi v. Estrella Vista Homeowners Association

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Case Summary

Case ID 19F-H1919047-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-06-05
Administrative Law Judge Thomas Shedden
Outcome The Administrative Law Judge dismissed the petition, ruling that the Architectural Committee meetings of the HOA were not 'regularly scheduled' within the meaning of ARIZ. REV. STAT. § 33-1804, and therefore the HOA was not required to hold them open to association members.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victor L Pattarozzi Counsel —
Respondent Estrella Vista Homeowners Association Counsel Andrew Apodaca, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Architectural Committee meetings of the HOA were not 'regularly scheduled' within the meaning of ARIZ. REV. STAT. § 33-1804, and therefore the HOA was not required to hold them open to association members.

Why this result: The petitioner failed to prove that the committee meetings met the requirement of being 'regularly scheduled' because the committee did not meet at fixed or uniform intervals, but rather considered applications as they were received.

Key Issues & Findings

Whether the Architectural Committee meetings are 'regularly scheduled' and thus required to be open to members.

Petitioner alleged the HOA violated ARS 33-1804 by failing to hold open meetings of its Architectural Committee (ARC). The ALJ found that because the ARC did not meet on a set schedule or at uniform intervals, it did not hold 'regularly scheduled' meetings as required by the statute, and thus was not required to be open.

Orders: Petitioner's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Analytics Highlights

Topics: HOA Open Meetings, Architectural Review Committee, Statutory Interpretation, Regularly Scheduled
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Video Overview

Audio Overview

Decision Documents

19F-H1919047-REL Decision – 713039.pdf

Uploaded 2026-04-24T11:19:09 (89.8 KB)

19F-H1919047-REL Decision – 713039.pdf

Uploaded 2026-01-23T17:29:01 (89.8 KB)

Briefing Document: Pattarozzi vs. Estrella Vista Homeowners Association (Case No. 19F-H1919047-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in the matter of Victor L. Pattarozzi vs. Estrella Vista Homeowners Association, Case No. 19F-H1919047-REL. The central issue was whether the homeowner association’s Architectural Review Committee (ARC) was in violation of Arizona state law by not holding open meetings for its members.

The petition, brought by Mr. Pattarozzi, was ultimately dismissed. The Administrative Law Judge, Thomas Shedden, concluded that the Petitioner failed to prove that the Respondent violated ARIZ. REV. STAT. § 33-1804. The decision hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Judge found that since the ARC did not meet at fixed, uniform, or recurring intervals, but rather on an as-needed basis to review applications, its meetings were not “regularly scheduled” within the meaning of the statute. Consequently, the legal requirement for such meetings to be open to all association members did not apply. The Judge further determined that the state’s declared policy in favor of open meetings explicitly referenced only the association’s and board of directors’ meetings, not committee meetings, and therefore could not be used to compel the ARC meetings to be open.

Case Overview

Case Number

19F-H1919047-REL

Petitioner

Victor L. Pattarozzi

Respondent

Estrella Vista Homeowners Association

Presiding Judge

Thomas Shedden, Administrative Law Judge

Hearing Date

May 16, 2019

Decision Date

June 5, 2019

Jurisdiction

Office of Administrative Hearings, Arizona Department of Real Estate

Allegation: The Petitioner, Victor L. Pattarozzi, alleged that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. § 33-1804 by failing to hold open meetings for its Architectural Committee (referred to as the Architectural Review Committee or ARC).

Defense: The Respondent association contended that its ARC meetings were not required to be open to members because the meetings were not “regularly scheduled.”

Central Legal Issue: The Definition of “Regularly Scheduled”

The case revolved entirely around the interpretation of a key phrase within Arizona’s planned community statutes.

Governing Statute: ARIZ. REV. STAT. § 33-1804(A) states:

“Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association….”

The core legal question was whether the ARC’s method of conducting business constituted “regularly scheduled” meetings.

Competing Arguments

• Petitioner’s Position (Mr. Pattarozzi):

◦ Mr. Pattarozzi argued that the association could hold weekly ARC meetings and simply cancel them if no applications were pending for review.

◦ He supplied dictionary definitions for “regular” and “regularly” to support his interpretation:

▪ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals”.

▪ Regular: (1) “constituted, conducted, scheduled, or done in conformity with established or prescribed usages, rules, or discipline”; (2) “recurring, attending, or functioning at fixed, uniform, or normal intervals”.

◦ He also contended that the state’s declared policy in favor of open meetings, as outlined in subsection 33-1804(F), should be broadly construed to require ARC meetings to be open.

• Respondent’s Position (Estrella Vista HOA):

◦ The association maintained that its ARC meetings were not required to be open because they do not occur on a set schedule. Instead, they are convened only as needed when applications are received.

Findings of Fact

The decision outlined the specific operational procedures of the Architectural Review Committee.

• Composition and Process: The ARC consists of five members. It does not meet on a predetermined schedule. Instead, applications are forwarded by the management company to the Board President, Stuart Glenn.

• “Rubber Stamp” Approvals: The ARC has a pre-approved “rubber stamp” process for certain requests, such as solar panel installations and repainting with a pre-approved color. These requests are approved without further review by the full committee.

• Application Volume: As of the May 16, 2019 hearing, the ARC had received twelve applications in 2019. Of these, eight were subject to the “rubber stamp” approval process.

• Non-Standard Applications: For any application not meeting the rubber-stamp criteria, Mr. Glenn forwards it to the other four ARC members, who individually report back on their approval or disapproval.

Legal Reasoning and Decision

The Administrative Law Judge’s conclusions of law provided a detailed statutory interpretation that led to the dismissal of the petition.

Interpretation of “Regularly Scheduled”

The Judge determined that the legislature intentionally distinguished between different types of meetings. While the law mandates that all meetings of the members’ association and the board of directors must be open, it applies a specific qualifier—”regularly scheduled”—to committee meetings. This implies that not all committee meetings must be open.

The Judge adopted the Petitioner’s second definition of “regular”: “recurring, attending, or functioning at fixed, uniform, or normal intervals.” This interpretation was deemed to provide a fair and sensible result.

The Judge explicitly rejected the Petitioner’s first definition—”done in conformity with established or prescribed usages, rules, or discipline”—on the grounds that it would render the word “regular” redundant. The Judge reasoned that all committee meetings are presumed to be conducted according to established rules, so applying this definition would make the statutory language trivial.

Rejection of the “Open Meeting Policy” Argument

The Petitioner argued that subsection 33-1804(F), which declares a state policy in favor of open meetings, should apply. The Judge rejected this argument based on the specific text of the statute:

“It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly ….”

The Judge noted that this policy statement explicitly references only meetings of the “members’ association” and the “board of directors,” and omits any mention of committee meetings. Therefore, the policy could not be used to compel the ARC meetings to be open.

Final Order

Ruling: IT IS ORDERED that Victor L. Pattarozzi’s petition is dismissed.

Justification: The Petitioner, who bore the burden of proof, did not establish by a preponderance of the evidence that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. § 33-1804. The Judge concluded that the ARC “does not hold ‘regularly scheduled’ meetings within the meaning of” the statute.

Next Steps: The decision is binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Study Guide: Pattarozzi v. Estrella Vista Homeowners Association

This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 19F-H1919047-REL, concerning a dispute between Victor L. Pattarozzi and the Estrella Vista Homeowners Association. The guide includes a quiz with an answer key, a set of essay questions for deeper analysis, and a glossary of key terms found within the legal decision.

Quiz: Short-Answer Questions

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

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

2. What specific violation did Petitioner Victor L. Pattarozzi allege against the Respondent, the Estrella Vista Homeowners Association?

3. What was the central argument made by the Estrella Vista Homeowners Association to defend its Architectural Review Committee’s meeting practices?

4. Describe the composition of the Architectural Review Committee (ARC) and its method for reviewing applications.

5. What was the “rubber stamp” process used by the ARC, and how many of the 12 applications received in 2019 were approved this way?

6. What suggestion did Mr. Pattarozzi offer for how the ARC could schedule its meetings to comply with his interpretation of the statute?

7. Which of Mr. Pattarozzi’s proposed definitions for the word “regular” did the Administrative Law Judge ultimately accept as the most appropriate interpretation in this context?

8. According to the judge’s Conclusions of Law, why was Mr. Pattarozzi’s argument regarding the open meetings policy statement in subsection 33-1804(F) rejected?

9. Who bears the burden of proof in this matter, and what is the required standard of proof?

10. What was the final Order issued by the Administrative Law Judge in this case, and on what date was it issued?

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Answer Key

1. The primary parties were the Petitioner, Victor L. Pattarozzi, who brought the complaint, and the Respondent, the Estrella Vista Homeowners Association, which was defending its actions. Mr. Pattarozzi appeared on his own behalf, while the HOA was represented by Andrew Apodaca, Esq. and its Board president, Stuart Glenn.

2. Mr. Pattarozzi alleged that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. sections 33-1804 and 33-1805. His specific claim was that the HOA’s Architectural Review Committee (ARC) was failing to hold open meetings as required by section 33-1804.

3. The HOA’s position was that its ARC meetings were not required to be open to all members because the meetings were not “regularly scheduled.” The statute only mandates that “regularly scheduled committee meetings” must be open.

4. The ARC consists of five members and does not meet on a set schedule, instead considering applications as they are received. The Board president, Mr. Glenn, receives applications, determines if they meet “rubber-stamp” criteria, and if not, forwards them to the other four members for their agreement or disagreement.

5. The “rubber stamp” process was a pre-approved method for approving requests for solar panels and repainting using preapproved colors without further review. Of the twelve applications received by the ARC in 2019, eight were subject to this rubber-stamp approval.

6. Mr. Pattarozzi argued that the Respondent could schedule ARC meetings on a weekly basis. If there were no applications pending for a given week, the HOA could simply cancel the meeting.

7. The judge accepted Mr. Pattarozzi’s second definition of “regular,” which was “recurring, attending, or functioning at fixed, uniform, or normal intervals.” The judge concluded this meant only committee meetings scheduled on a recurring basis at uniform intervals must be open.

8. The argument was rejected because the policy statement in subsection 33-1804(F) explicitly references only the “meetings of the members’ association or meetings of the board of directors.” Because committee meetings were not mentioned in that specific subsection, the judge ruled that its strong policy in favor of open meetings did not apply to them.

9. The Petitioner, Mr. Pattarozzi, bears the burden of proof. The standard of proof required to decide all issues in the matter is a “preponderance of the evidence.”

10. The final Order was that Victor L. Pattarozzi’s petition be dismissed. This Order was issued on June 5, 2019.

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Essay Questions

1. Analyze the Administrative Law Judge’s interpretation of ARIZ. REV. STAT. section 33-1804. Discuss how the judge used principles of statutory interpretation, such as giving meaning to every word and considering legislative intent, to differentiate between board meetings and committee meetings.

2. Evaluate the strength of Victor L. Pattarozzi’s case. What were his key arguments, including his use of dictionary definitions and the policy statement in subsection 33-1804(F), and why did the judge ultimately find them unconvincing?

3. Discuss the concept of “preponderance of the evidence” as defined in the decision. Explain how this standard of proof applied to Mr. Pattarozzi’s petition and why he failed to meet it.

4. Examine the operational procedures of the Architectural Review Committee (ARC). How did the “rubber stamp” process and the ad-hoc nature of their meetings support the Respondent’s position that the meetings were not “regularly scheduled”?

5. Based on the judge’s reasoning, what specific changes would the Estrella Vista Homeowners Association’s Architectural Committee need to make for its meetings to be considered “regularly scheduled” and therefore required to be open to all members under Arizona law?

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Glossary of Key Terms

Definition

Administrative Law Judge

An official, in this case Thomas Shedden, who presides over administrative hearings, weighs evidence, and makes legal decisions and orders.

Architectural Review Committee (ARC)

A committee of the Estrella Vista Homeowners Association, consisting of five members, responsible for reviewing and approving member applications for things like solar panels and house painting.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a set of state regulations. In this case, § R2-19-119 established the standard of proof.

ARIZ. REV. STAT.

Arizona Revised Statutes, the laws enacted by the Arizona state legislature. Sections 33-1804 and 33-1805 were the statutes central to this case.

Burden of Proof

The obligation to prove one’s assertion. In this matter, the burden of proof was on the Petitioner, Mr. Pattarozzi.

Department of Real Estate

The Arizona state agency with legal authority over this matter, which issued the initial Notice of Hearing.

Dismissed

The legal term for the final Order in this case, meaning the Petitioner’s petition was rejected and no action was taken against the Respondent.

Office of Administrative Hearings

The venue where the hearing for this case was held on May 16, 2019.

Petitioner

The party who files a petition or brings a legal action against another. In this case, Victor L. Pattarozzi.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed or an action is brought. In this case, the Estrella Vista Homeowners Association.

Statutory Interpretation

The process by which judges interpret and apply legislation. The decision outlines several principles, such as giving words their ordinary meanings and ensuring no part of a statute is redundant.

Briefing Document: Pattarozzi vs. Estrella Vista Homeowners Association (Case No. 19F-H1919047-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in the matter of Victor L. Pattarozzi vs. Estrella Vista Homeowners Association, Case No. 19F-H1919047-REL. The central issue was whether the homeowner association’s Architectural Review Committee (ARC) was in violation of Arizona state law by not holding open meetings for its members.

The petition, brought by Mr. Pattarozzi, was ultimately dismissed. The Administrative Law Judge, Thomas Shedden, concluded that the Petitioner failed to prove that the Respondent violated ARIZ. REV. STAT. § 33-1804. The decision hinged on the interpretation of the phrase “regularly scheduled committee meetings.” The Judge found that since the ARC did not meet at fixed, uniform, or recurring intervals, but rather on an as-needed basis to review applications, its meetings were not “regularly scheduled” within the meaning of the statute. Consequently, the legal requirement for such meetings to be open to all association members did not apply. The Judge further determined that the state’s declared policy in favor of open meetings explicitly referenced only the association’s and board of directors’ meetings, not committee meetings, and therefore could not be used to compel the ARC meetings to be open.

Case Overview

Case Number

19F-H1919047-REL

Petitioner

Victor L. Pattarozzi

Respondent

Estrella Vista Homeowners Association

Presiding Judge

Thomas Shedden, Administrative Law Judge

Hearing Date

May 16, 2019

Decision Date

June 5, 2019

Jurisdiction

Office of Administrative Hearings, Arizona Department of Real Estate

Allegation: The Petitioner, Victor L. Pattarozzi, alleged that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. § 33-1804 by failing to hold open meetings for its Architectural Committee (referred to as the Architectural Review Committee or ARC).

Defense: The Respondent association contended that its ARC meetings were not required to be open to members because the meetings were not “regularly scheduled.”

Central Legal Issue: The Definition of “Regularly Scheduled”

The case revolved entirely around the interpretation of a key phrase within Arizona’s planned community statutes.

Governing Statute: ARIZ. REV. STAT. § 33-1804(A) states:

“Notwithstanding any provision in the declaration, bylaws or other documents to the contrary, all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association….”

The core legal question was whether the ARC’s method of conducting business constituted “regularly scheduled” meetings.

Competing Arguments

• Petitioner’s Position (Mr. Pattarozzi):

◦ Mr. Pattarozzi argued that the association could hold weekly ARC meetings and simply cancel them if no applications were pending for review.

◦ He supplied dictionary definitions for “regular” and “regularly” to support his interpretation:

▪ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals”.

▪ Regular: (1) “constituted, conducted, scheduled, or done in conformity with established or prescribed usages, rules, or discipline”; (2) “recurring, attending, or functioning at fixed, uniform, or normal intervals”.

◦ He also contended that the state’s declared policy in favor of open meetings, as outlined in subsection 33-1804(F), should be broadly construed to require ARC meetings to be open.

• Respondent’s Position (Estrella Vista HOA):

◦ The association maintained that its ARC meetings were not required to be open because they do not occur on a set schedule. Instead, they are convened only as needed when applications are received.

Findings of Fact

The decision outlined the specific operational procedures of the Architectural Review Committee.

• Composition and Process: The ARC consists of five members. It does not meet on a predetermined schedule. Instead, applications are forwarded by the management company to the Board President, Stuart Glenn.

• “Rubber Stamp” Approvals: The ARC has a pre-approved “rubber stamp” process for certain requests, such as solar panel installations and repainting with a pre-approved color. These requests are approved without further review by the full committee.

• Application Volume: As of the May 16, 2019 hearing, the ARC had received twelve applications in 2019. Of these, eight were subject to the “rubber stamp” approval process.

• Non-Standard Applications: For any application not meeting the rubber-stamp criteria, Mr. Glenn forwards it to the other four ARC members, who individually report back on their approval or disapproval.

Legal Reasoning and Decision

The Administrative Law Judge’s conclusions of law provided a detailed statutory interpretation that led to the dismissal of the petition.

Interpretation of “Regularly Scheduled”

The Judge determined that the legislature intentionally distinguished between different types of meetings. While the law mandates that all meetings of the members’ association and the board of directors must be open, it applies a specific qualifier—”regularly scheduled”—to committee meetings. This implies that not all committee meetings must be open.

The Judge adopted the Petitioner’s second definition of “regular”: “recurring, attending, or functioning at fixed, uniform, or normal intervals.” This interpretation was deemed to provide a fair and sensible result.

The Judge explicitly rejected the Petitioner’s first definition—”done in conformity with established or prescribed usages, rules, or discipline”—on the grounds that it would render the word “regular” redundant. The Judge reasoned that all committee meetings are presumed to be conducted according to established rules, so applying this definition would make the statutory language trivial.

Rejection of the “Open Meeting Policy” Argument

The Petitioner argued that subsection 33-1804(F), which declares a state policy in favor of open meetings, should apply. The Judge rejected this argument based on the specific text of the statute:

“It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly ….”

The Judge noted that this policy statement explicitly references only meetings of the “members’ association” and the “board of directors,” and omits any mention of committee meetings. Therefore, the policy could not be used to compel the ARC meetings to be open.

Final Order

Ruling: IT IS ORDERED that Victor L. Pattarozzi’s petition is dismissed.

Justification: The Petitioner, who bore the burden of proof, did not establish by a preponderance of the evidence that the Estrella Vista Homeowners Association violated ARIZ. REV. STAT. § 33-1804. The Judge concluded that the ARC “does not hold ‘regularly scheduled’ meetings within the meaning of” the statute.

Next Steps: The decision is binding unless a party files a request for rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Case Participants

Petitioner Side

  • Victor L Pattarozzi (petitioner)
    Appeared and testified on his own behalf

Respondent Side

  • Andrew Apodaca (attorney)
    Goering, Roberts, Rubin, Brogna, Enos & Treadwell-Rubin, P.C.
    Attorney for Respondent Estrella Vista Homeowners Association
  • Stuart Glenn (board member)
    Estrella Vista Homeowners Association
    Board president who presented testimony for Respondent

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
    Recipient of transmittal
  • Felicia Del Sol (Administrative Staff)
    Listed in the final section of the document