Tag Archives: 2020

Steven D. Stienstra v. Cedar Ridge Homeowners Association

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

Case Summary

Case ID 19F-H1918033-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-04-01
Administrative Law Judge Kay Abramsohn
Outcome The Petitioner was the prevailing party. The ALJ affirmed that the HOA violated its CC&Rs regarding enforcement procedures, particularly by failing to adhere to Section 18 requirements and incorrectly applying Section 1.1 against the owner, rendering the legal fee demands improper. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Steven D. Stienstra Counsel —
Respondent Cedar Ridge Homeowners Association Counsel Michelle Molinario, Diana J. Elston, Keith D. Collett

Alleged Violations

A.R.S. § 33-1806.01; CC&Rs Section 1.1; CC&Rs Section 18

Outcome Summary

The Petitioner was the prevailing party. The ALJ affirmed that the HOA violated its CC&Rs regarding enforcement procedures, particularly by failing to adhere to Section 18 requirements and incorrectly applying Section 1.1 against the owner, rendering the legal fee demands improper. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,.

Why this result: The HOA failed to follow the explicit due process requirements (written notice and 30 days to appear) mandated by CC&Rs Section 18 for enforcement against the owner, and incorrectly relied on Section 1.1 to justify its demand for unauthorized flat fees,,,,.

Key Issues & Findings

HOA enforcement action regarding CC&R violations and asserted legal fees

Petitioner challenged the HOA's enforcement actions regarding short-term rentals and leasing less than the entire lot. The ALJ found the HOA proceeded inappropriately under Section 1.1 (intended for action against occupants on the owner's behalf) and failed to follow the mandatory enforcement requirements of Section 18, thus violating its own CC&Rs. Consequently, the asserted legal fees were not assigned to Petitioner,,,.

Orders: The Petition was granted. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,. The asserted legal fees of $1,500 and $2,600 sought by the HOA were determined not to be assignable to the Petitioner,.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1806.01
  • CC&Rs Section 1.1
  • CC&Rs Section 18

Analytics Highlights

Topics: HOA Enforcement, CC&R Violation, Legal Fees, Due Process, Rental Restriction
Additional Citations:

  • A.R.S. § 33-1806.01
  • CC&Rs Section 1.1
  • CC&Rs Section 18
  • A.R.S. § 10-3830

Video Overview

Audio Overview

Decision Documents

19F-H1918033-REL-RHG Decision – 779896.pdf

Uploaded 2026-01-23T17:27:52 (210.6 KB)

19F-H1918033-REL-RHG Decision – ../19F-H1918033-REL/753362.pdf

Uploaded 2026-01-23T17:27:56 (169.0 KB)

Briefing Document: Stienstra v. Cedar Ridge Homeowners Association

Executive Summary

This document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between homeowner Steven D. Stienstra (Petitioner) and the Cedar Ridge Homeowners Association (HOA/Respondent). The core conflict centered on the HOA’s enforcement actions and subsequent demand for attorney’s fees related to alleged violations of Covenants, Conditions, and Restrictions (CC&Rs) prohibiting short-term rentals.

The ALJ ultimately ruled in favor of the Petitioner in both the initial hearing and a subsequent rehearing. The decisions established that the HOA violated its own CC&Rs by employing an incorrect and unreasonable enforcement procedure. Specifically, the HOA misapplied Section 1.1 of the CC&Rs, which governs an owner’s failure to take action against a non-compliant tenant, instead of following the prescribed due process for owner violations outlined in Section 18. Consequently, the ALJ concluded that the attorney’s fees demanded by the HOA were not assignable to the Petitioner. The final order required the HOA to reimburse the Petitioner’s $500 filing fee, affirming that the HOA’s actions, including a series of escalating cease and desist letters, were procedurally flawed and unreasonable given the circumstances.

Case Overview and Core Dispute

The case, No. 19F-H1918033-REL, involved a petition filed by Steven D. Stienstra in November 2018 with the Arizona Department of Real Estate. Mr. Stienstra alleged that the Cedar Ridge Homeowners Association, a voluntary board in Sedona, Arizona, violated A.R.S. § 33-1806.01 and Sections 1.1 and 18 of its own CC&Rs.

The dispute originated from short-term rental activity at Mr. Stienstra’s property, which he purchased in August 2017. While the Petitioner admitted to the initial violations, he contended that he ceased the activity immediately after a phone call from the HOA President in April 2018. Despite his assurances, the HOA, acting on legal advice, pursued enforcement through a series of cease and desist letters, culminating in a demand for $2,600 in attorney’s fees.

The central issue before the Office of Administrative Hearings was whether the HOA’s enforcement process was proper under its governing documents and, consequently, whether Mr. Stienstra was liable for the legal fees incurred by the HOA.

Chronology of the Dispute

Details

Aug 2017

Property Purchase

Steven D. Stienstra purchases the residence. He acknowledges the CC&R restrictions on short-term rentals.

Jan-Apr 2018

Rental Activity

Stienstra’s son uses VRBO to manage stays for friends and family, which expands to produce some revenue from rentals of less than 30 days.

Apr 3, 2018

Motor Home Incident

HOA Secretary Vic Burolla calls Stienstra about a motor home parked in the driveway, a separate CC&R violation.

April 2018

Ferguson’s Phone Call

HOA President Bill Ferguson calls Stienstra about the short-term rentals. Recollections vary, but Stienstra claims he agreed to cease the activity. Ferguson’s impression was that Stienstra was not going to stop.

Apr 26, 2018

HOA Retains Counsel

The first noted contact between the HOA and its law firm occurs after the phone call with Stienstra.

May 11, 2018

First Cease & Desist Letter

The HOA’s attorney sends a letter demanding Stienstra cease all rentals of less than 30 days and rentals of less than the entire property within ten days, threatening a lawsuit under Section 1.1 of the CC&Rs.

June 1, 2018

Second Cease & Desist Letter

The HOA rejects Stienstra’s explanation of compliance. The letter demands payment of $1,500.00 by July 2, 2018, described as a “flat amount to resolve the matter.”

June 17, 2018

Third Cease & Desist Letter

Citing a new Facebook Marketplace post by Stienstra’s son (offering to lease bedrooms separately), the HOA sends another letter. The demand for attorney’s fees increases to $2,600.00.

Sep 4, 2018

Informal Meeting

At Stienstra’s request, three HOA board members meet with him in an unofficial capacity to discuss the dispute. The meeting transcript reflects a tense relationship.

Nov 2018

Petition Filed

Stienstra files his petition with the Arizona Department of Real Estate.

Oct 7, 2019

Initial Hearing

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

Nov 15, 2019

Initial Decision

ALJ Kay Abramsohn issues a decision finding the HOA violated its CC&Rs and grants Stienstra’s petition.

Dec 19, 2019

Rehearing Request

The HOA requests a rehearing, arguing the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion.”

Mar 12, 2020

Rehearing

A rehearing is conducted where the HOA introduces new arguments, including that its board acted in good faith on legal advice.

Apr 1, 2020

Rehearing Decision

The ALJ issues a final decision affirming the original order, finding Stienstra to be the prevailing party and ordering the HOA to reimburse his $500 filing fee.

Analysis of Arguments and Evidence

Petitioner’s Position (Steven D. Stienstra)

• Compliance: Stienstra argued that he and his son ceased all short-term rental activity immediately following the April 2018 phone call from HOA President Bill Ferguson.

• Improper Procedure: The core of his argument was that the HOA failed to follow the enforcement procedures mandated by Section 18 of the CC&Rs. This section requires the Board to provide written notice of a breach, a 30-day period for the owner to appear before the Board, and a reasonable time (up to 60 days) to remedy the breach before levying fines.

• Misapplication of CC&Rs: Stienstra contended the HOA incorrectly proceeded under Section 1.1, which he argued applies to an owner’s failure to take legal action against a non-compliant tenant, not direct violations by the owner themselves.

• Unjustified Fees: Because the HOA did not provide due process and followed an improper enforcement path, Stienstra argued he should be released from any liability for the attorney’s fees the HOA incurred.

Respondent’s Position (Cedar Ridge HOA)

• Reasonable Belief of Violation: The HOA argued it had reason to believe violations were ongoing. It cited the continued presence of a VRBO listing (which Stienstra’s son claimed was inactive for booking) and observations of “multiple cars parked there daily” as evidence.

• Reliance on Legal Counsel: The HOA maintained that its actions were reasonable because it sought and followed the advice of its attorney. At the rehearing, it cited A.R.S. § 10-3830, arguing it discharged its duties in good faith.

• Discretion in Enforcement: The Board believed it had the discretion to enforce the CC&Rs under either Section 1.1 or Section 18. Board Secretary Vic Burolla testified at the rehearing that Section 1.1 was chosen because it “seemed more expeditious, to be able to collect” legal fees.

• “Unclean Hands” Doctrine: At the rehearing, the HOA argued for the first time that because Stienstra had admittedly violated the CC&Rs initially, he had “unclean hands” and was not entitled to seek relief regarding the HOA’s subsequent actions.

Key Evidence Presented

• CC&Rs: The text of Section 1.1 (“Leasing”) and Section 18 (“Enforcement of Covenants”) were central to the case.

• Cease & Desist Letters: The series of three letters from the HOA’s attorney documented the escalating demands and the HOA’s legal strategy.

• Testimony of Board Members: Testimony from Bill Ferguson and Vic Burolla provided insight into the Board’s decision-making process, including their impression of the April 2018 phone call and their justification for hiring an attorney. Vic Burolla provided conflicting testimony, stating in the initial hearing he was “not aware of any specific instructions in the CC&Rs” for notifications, but stating in the rehearing that the Board had discussed the benefits of proceeding under either Section 1.1 or Section 18.

• VRBO and Facebook Listings: Printouts of the online rental listings were used as evidence by the HOA to demonstrate ongoing or attempted violations.

• Meeting Transcript: A transcript of the informal September 4, 2018 meeting revealed the “tense relationship” and communication breakdown between the parties. When asked who was in the house if not tenants, Stienstra replied, “It’s not anybody’s business who’s in our house, really.”

Administrative Law Judge’s Findings and Rulings

The ALJ’s conclusions were consistent across both the initial decision and the rehearing decision, ultimately finding that the Petitioner had proven his case by a preponderance of the evidence.

Interpretation of Governing CC&Rs

• Section 1.1 vs. Section 18: The ALJ decisively concluded that the two sections govern different circumstances.

◦ Section 1.1 applies when an occupant or lessee violates the CC&Rs. It requires the owner to take legal action against that occupant within 10 days of a written demand from the Board. If the owner fails, the Board may act “on behalf of such owner against owner’s occupant.” The ALJ found these were “not the circumstances in this case.”

◦ Section 1.8 is the proper procedure for violations committed directly by the owner. It provides a clear due process framework: written notice, an opportunity to be heard by the Board, and a period to cure the breach.

• Conclusion: The ALJ ruled that the “appropriate action that was required to be taken by Respondent was set forth in Section 18 of the CC&Rs.” By using Section 1.1, the HOA committed a procedural violation.

Assessment of HOA Enforcement Actions

• Verbal Warning: The ALJ characterized the April 2018 phone call from Mr. Ferguson as “appropriate in the nature of education” but clarified it “is not an ‘enforcement’ action under the CC&Rs.”

• Unreasonable Continuation: The Judge found the HOA’s continued actions after the May 11 letter to be unreasonable. The decision notes that the HOA’s characterization of Stienstra “intentionally” continuing to violate the CC&Rs “simply demonstrates that the Board members did not and were not going to believe Petitioner or his son no matter what information they provided.”

• Distrust: The decision highlights the Board’s fundamental distrust, quoting Mr. Burolla’s testimony that even if the HOA had called to clarify the situation, “there’s no reason to suspect we would have been told the truth.”

Ruling on Attorney’s Fees

• Not Assignable to Petitioner: Because the HOA violated its own CC&Rs by following an improper enforcement procedure, the ALJ ruled that the “asserted legal fees are not assigned to Petitioner.”

• Improper Demand: The ALJ specifically analyzed the demand in the June 1, 2018 letter for “$1,500.00… authorized by the Board as a flat amount to resolve the matter.” The ruling states this amount “could only be looked at as either a settlement offer or as some sort of fine, which is not authorized under Section 1.1 but only under Section 18.” It was not a legitimate accounting of actual fees incurred as permitted by the CC&Rs.

• No Expenses Incurred Under Section 1.1: The Judge found that since Stienstra took action to stop the leasing, no legal action by the HOA “on behalf of the owner against the occupant” was required. Therefore, no expenses were actually incurred pursuant to the parameters of Section 1.1.

Final Decisions and Order

• Initial Decision (Nov 15, 2019): The petition was granted, and the HOA was ordered to reimburse Mr. Stienstra the $500.00 filing fee.

• Rehearing Decision (Apr 1, 2020): The ALJ affirmed the original order. The HOA’s new arguments regarding “good faith” and “unclean hands” did not alter the core finding of procedural failure. The final order declared the Petitioner the prevailing party and re-stated the requirement for the HOA to reimburse the filing fee.

Study Guide: Stienstra v. Cedar Ridge Homeowners Association

This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.

1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?

2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?

3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.

4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?

5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?

6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?

7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?

8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?

9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?

10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?

——————————————————————————–

Quiz Answer Key

1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.

2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”

3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.

4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.

5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.

6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.

7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.

8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.

9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.

10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.

1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?

2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.

3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?

4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.

5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.

——————————————————————————–

Glossary

Definition

A.R.S. § 33-1806.01

An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.

Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.

Cease & Desist Letter

A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.

Declaration

The legal document that creates a homeowners association and its CC&Rs.

Forcible Entry and Detainer

A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.

A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.

Occupant

As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.

Preponderance of the Evidence

The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.

Respondent

The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.

Special Assessment

A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.

Unclean Hands

A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.

An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.

Study Guide: Stienstra v. Cedar Ridge Homeowners Association

This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.

Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.

1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?

2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?

3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.

4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?

5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?

6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?

7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?

8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?

9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?

10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?

——————————————————————————–

Quiz Answer Key

1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.

2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”

3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.

4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.

5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.

6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.

7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.

8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.

9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.

10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.

1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?

2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.

3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?

4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.

5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.

——————————————————————————–

Glossary

Definition

A.R.S. § 33-1806.01

An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.

Administrative Law Judge (ALJ)

The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.

Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.

Cease & Desist Letter

A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.

Declaration

The legal document that creates a homeowners association and its CC&Rs.

Forcible Entry and Detainer

A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.

A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.

Occupant

As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.

Preponderance of the Evidence

The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.

Respondent

The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.

Special Assessment

A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.

Unclean Hands

A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.

An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.

Case Participants

Petitioner Side

  • Steven D. Stienstra (petitioner)
    Appeared on his own behalf,.
  • Petitioner's son (witness)
    Related to Petitioner
    Managed rental property listings (referred to as 'Son'),,; testified at hearing,.

Respondent Side

  • Michelle Molinario (HOA attorney)
    Jones, Skelton & Hochuli, PLC.
    Represented Cedar Ridge Homeowners Association,.
  • Keith D. Collett (HOA attorney)
    Jones, Skelton & Hochuli, PLC.
    Represented Cedar Ridge Homeowners Association/HOA,,.
  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
    Represented Cedar Ridge Homeowners Association/HOA,.
  • Vic Burolla (board member)
    Cedar Ridge Homeowners Association
    HOA Board Secretary,,; witness at initial hearing,,; no longer Secretary by time of hearing,.
  • Bill Ferguson (board member)
    Cedar Ridge Homeowners Association
    HOA Board President,; no longer President by time of hearing,; witness at initial hearing.
  • Tucker (board member)
    Cedar Ridge Homeowners Association
    HOA Board Vice-president,; participated in September 4, 2018 meeting,.
  • Griffin (board member)
    Cedar Ridge Homeowners Association
    HOA Board Treasurer,; participated in September 4, 2018 meeting,.
  • Dick Ellis (board member)
    Cedar Ridge Homeowners Association
    May have attended portion of September 4, 2018 meeting,.

Neutral Parties

  • Kay Abramsohn (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge,,.
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Commissioner,,.

Donna M Bischoff v. Country Hills West Condominium Association, Inc.

Posted on by

Case Summary

Case ID 20F-H2019033-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-03-30
Administrative Law Judge Antara Nath Rivera
Outcome The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Donna M Bischoff Counsel —
Respondent Country Hills West Condominium Association, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1250(C)
A.R.S. § 33-1248(B)
Bylaws Article 3, Section 2

Outcome Summary

The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.

Key Issues & Findings

Voting; proxies; absentee ballots; applicability; definition

Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.

Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1250(C)

Open meetings; exceptions

Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.

Orders: Petition upheld on this issue.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1248(B)

Selection

Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.

Orders: Petition upheld on this issue.

Filing fee: $1,500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • Article 3, Section 2 of the Bylaws

Analytics Highlights

Topics: HOA Dispute, Condominium Association, Election Procedures, Annual Meeting, Statutory Violation, Bylaw Interpretation
Additional Citations:

  • A.R.S. § 33-1250(C)
  • A.R.S. § 33-1248(B)
  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Bylaws Article 3, Section 2
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-04-24T11:24:42 (108.5 KB)

20F-H2019033-REL Decision – 778923.pdf

Uploaded 2026-01-23T17:31:15 (108.5 KB)

Briefing Document: Bischoff v. Country Hills West Condominium Association

Executive Summary

This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.

The core violations upheld by the court are:

1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.

2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.

3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.

As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.

——————————————————————————–

I. Case Overview

The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.

Case Detail

Information

Case Name

Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent

Case Number

20F-H2019033-REL

Adjudicator

Administrative Law Judge Antara Nath Rivera

Hearing Date

March 10, 2020

Decision Date

March 30, 2020

Petitioner Representative

Donna M. Bischoff (on her own behalf)

Respondent Representative

Doug Meyer, President and Director

II. Petitioner’s Allegations

The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:

• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.

• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.

• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.

The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

III. Core Issues and Factual Findings

The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.

A. Failure to Hold the 2019 Annual Meeting

• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.

• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”

• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”

B. Denial of Access to Election Records

• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.

• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.

• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.

• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.

• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.

C. Improper Prohibition of Write-In Ballots

• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”

• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.

• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.

• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.

IV. Legal Conclusions and Final Order

The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.

Final Order:

Based on the foregoing conclusions, IT IS ORDERED that:

1. The Petition filed by Donna M. Bischoff is upheld on all issues.

2. The Petitioner is deemed the prevailing party in the matter.

3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.

4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.

5. No Civil Penalty is found to be appropriate in this matter.

The Order is binding on the parties unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.

Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.

This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.

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

2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?

3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?

4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?

5. What information did the Petitioner request from the October 2018 election, and what was the initial response?

6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?

7. What is the legal standard of proof the Petitioner was required to meet in this hearing?

8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?

9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?

10. What were the key components of the final Order issued by the Administrative Law Judge?

——————————————————————————–

Answer Key

1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.

2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.

3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.

4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.

5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.

6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.

7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.

8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.

9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.

10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.

1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.

2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?

3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.

4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.

5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.

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Glossary of Key Terms

Definition

Administrative Law Judge

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.

Arizona Department of Real Estate (Department)

The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.

Arizona Revised Statutes (A.R.S.)

The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).

Bylaws

The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.

Homeowners Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.

Office of Administrative Hearings

The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Quorum

The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.

Respondent

The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.

Select all sources
778923.pdf

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20F-H2019033-REL

1 source

This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.

1 source

What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?

Based on 1 source

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Donna M Bischoff (petitioner)
    Appeared on her own behalf

Respondent Side

  • Doug Meyer (president, director, witness)
    Country Hills West Condominium Association, Inc.
    Appeared and testified on behalf of Respondent

Neutral Parties

  • Antara Nath Rivera (ALJ)
    OAH
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted electronically to Commissioner

Gregory L Czekaj vs. Colonia Del Rey HOA

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-H1918040-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-03-25
Administrative Law Judge Kay Abramsohn
Outcome The HOA prevailed on all three complaints regarding records, fee increases, and meeting notices. Petitioner failed to prove violations.
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Gregory L. Czekaj Counsel —
Respondent Colonia Del Rey HOA, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1805
A.R.S. § 33-1812(A)
A.R.S. § 33-1804(B)

Outcome Summary

The HOA prevailed on all three complaints regarding records, fee increases, and meeting notices. Petitioner failed to prove violations.

Why this result: Petitioner failed to prove violations by a preponderance of the evidence; HOA complied with statutes regarding record provision and meeting notice mailing; fee increase vote was valid without proxy.

Key Issues & Findings

Records Request Violation

Petitioner alleged HOA failed to provide requested records. ALJ found HOA reasonably clarified burdensome requests and provided available records timely.

Orders: Petitioner's claim denied; HOA prevailed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805

Invalid Fee Increase / Proxy Vote

Petitioner alleged a $5 fee increase was invalid due to a proxy vote. ALJ found the proxy vote was not included in final valid count which met 2/3 requirement.

Orders: Petitioner's claim denied; HOA prevailed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1812(A)

Meeting Notice Violation

Petitioner alleged meeting notice was not received 10 days prior. ALJ ruled mailing at UPS contract postal unit 13 days prior satisfied 'sent' requirement.

Orders: Petitioner's claim denied; HOA prevailed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(B)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Decision Documents

19F-H1918040-REL-RHG Decision – 777724.pdf

Uploaded 2026-02-11T06:30:23 (266.8 KB)

19F-H1918040-REL-RHG Decision – ../19F-H1918040-REL/720897.pdf

Uploaded 2026-02-11T06:30:23 (224.6 KB)

Case Title: Gregory L. Czekaj v. Colonia Del Rey HOA, Inc. Case Number: 19F-H1918040-REL-RHG Date of Rehearing Decision: March 25, 2020

Procedural Status: Rehearing This summary details a rehearing of a dispute initially decided on July 8, 2019. The rehearing was granted by the Arizona Department of Real Estate Commissioner after the Petitioner alleged procedural errors regarding the retroactive swearing-in of witnesses during the initial hearing,. This summary distinguishes between the original findings and the rehearing analysis where applicable.

Background The case involves a Homeowners Association (HOA) comprised of nine homes. The Petitioner, a homeowner, filed three complaints alleging statutory violations. The HOA filed a counter-petition (Complaint Four) regarding the Petitioner's conduct,.

Complaint One: Records Requests

  • Issue: Petitioner alleged the HOA failed to provide requested records in violation of A.R.S. § 33-1805.
  • Original Decision: The Administrative Law Judge (ALJ) ruled the HOA prevailed. The ALJ found Petitioner’s request for "any and all" records burdensome and determined the HOA complied timely with clarified requests,.
  • Rehearing Proceedings: Petitioner argued his requests were not burdensome and claimed the HOA "refused" access, citing the 1984 CC&Rs and the lack of a physical business office as violations,. The HOA noted it has no office and records are kept in volunteers' homes.
  • Rehearing Outcome: The ALJ affirmed that the request for "any and all" documents was burdensome. The HOA satisfied its obligations by emailing documents and facilitating a records review session,. The ALJ ruled the HOA never refused records and remained the prevailing party,.

Complaint Two: Fee Increase Validity

  • Issue: Petitioner argued a $5 fee increase was invalid because the vote utilized a proxy, which he claimed violated A.R.S. § 33-1812.
  • Original Decision: The ALJ found that although a proxy was discussed, it was not counted in the final tally. The valid vote count (5 YES, 1 NO) met the requirement of 2/3 of votes cast.
  • Rehearing Proceedings: Petitioner argued that passage required six votes (2/3 of the membership). The HOA clarified that the governing documents require 2/3 of votes cast. Petitioner also attempted to introduce new arguments regarding ballot formatting, which the

Case Participants

Petitioner Side

  • Gregory L. Czekaj (Petitioner)
    Homeowner
    Appeared on his own behalf
  • Gary Wolf (Petitioner's Attorney)
    Contacted HOA attorney regarding records

Respondent Side

  • Marybeth Andree (HOA President)
    Colonia Del Rey HOA, Inc.
    Represented the HOA; also Secretary during some events
  • Carolyn Goldschmidt (HOA Attorney)
    Responded to records requests
  • Phil Oliver (Witness)
    Colonia Del Rey HOA, Inc.
    Former HOA President
  • Susan Sotelo (Witness)
    Colonia Del Rey HOA, Inc.
    Former HOA Secretary; testified regarding mailing of notices
  • Les Andree (Attendee)
    Marybeth Andree's husband; present at May 6, 2017 meeting

Neutral Parties

  • Kay Abramsohn (Administrative Law Judge)
    Office of Administrative Hearings
  • Mr. Tick (Witness)
    Insurance Agent
    Testified regarding HOA insurance policy request
  • Damian Schaffer (Witness)
    UPS Store
    UPS store clerk
  • Ed Freeman (Tenant)
    Involved in proxy vote issue; ineligible to vote
  • Sarah Hitch (Proxy Holder)
    Tenant who cast proxy vote
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the order

Other Participants

  • Maryanne Beerling (Member)
    Colonia Del Rey HOA, Inc.
    Present at May 6, 2017 meeting

Will Schreiber v. Cimarron Hills at McDowell Mountain Homeowners

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 20F-H2019003-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-03-16
Administrative Law Judge Antara Nath Rivera
Outcome The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Will Schreiber Counsel Aaron M. Green
Respondent Cimarron Hills at McDowell Mountain Homeowners Association Counsel Mark K. Sahl

Alleged Violations

Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3

Outcome Summary

The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.

Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.

Key Issues & Findings

HOA's denial of Petitioner's glass view fence modification

Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).

Orders: Petitioner Will Schreiber’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R’s Article 12.3
  • Design Guidelines Section HH
  • Design Guidelines Section E
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Homeowner dispute, View fence, Architectural approval, Design Guidelines, CC&R's violation, Retroactive approval, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

20F-H2019003-REL-RHG Decision – 769789.pdf

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Briefing Document: Schreiber v. Cimarron Hills HOA

Executive Summary

This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.

The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.

The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).

Case Identification and Participants

Detail

Information

Case Name

Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent

Case Number

20F-H2019003-REL-RHG

Tribunal

Office of Administrative Hearings (Arizona)

Administrative Law Judge

Antara Nath Rivera

Petitioner

Will Schreiber

Petitioner’s Counsel

Aaron M. Green, Esq.

Respondent

Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)

Respondent’s Counsel

Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)

Property Address

11551 East Caribbean Lane, Scottsdale, Arizona, 85255

Procedural History and Timeline

1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.

2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.

3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.

4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.

5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).

6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.

7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.

8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.

9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.

10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.

11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.

12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.

13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.

Analysis of Arguments

Petitioner’s Position (Will Schreiber)

The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.

• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.

• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.

• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.

• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”

Respondent’s Position (Cimarron Hills HOA)

The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.

• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.

• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.

• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.

• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.

Governing Documents Cited

The decision in this case was based on the interpretation of several key sections of the community’s governing documents.

• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.

• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”

• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.

• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.

Administrative Law Judge’s Decision and Rationale

The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.

• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.

• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.

• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.

Study Guide: Schreiber v. Cimarron Hills HOA

This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.

Short-Answer Quiz

Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.

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

2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?

3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?

4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?

5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?

6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.

7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?

8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?

9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?

10. What was the final outcome of the administrative rehearing held on January 30, 2020?

Answer Key

1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.

2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.

3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.

4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.

5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.

6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.

7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.

8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.

9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.

10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.

Essay Questions

The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.

1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.

2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?

3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.

4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.

5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.

Answer

The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.

Areas of Association Responsibility

Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.

An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.

Design Guidelines

A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.

Design Review Committee (DRC)

A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.

Homeowners Association Dispute Process Petition

The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.

McDowell Mountain Ranch Homeowners Association (MMRHA)

The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.

Petitioner

The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.

Preponderance of the evidence

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

Respondent

The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.

Retroactive Approval

Approval sought for a modification or construction that has already been completed without prior authorization.

Variance

A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.

The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA

Introduction: The Dream Project and the Unseen Rules

Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.

The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.

1. The most critical mistake wasn’t the fence—it was the timing.

The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.

The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.

In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.

2. A logical argument can lose to a written rule.

The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:

A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.

To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.

This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.

3. The HOA’s biggest concern wasn’t curb appeal; it was risk.

While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.

The HOA presented several key points:

• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.

• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.

• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”

Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.

4. In a dispute, you are the one who has to prove the HOA is wrong.

When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”

In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.

The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.

Conclusion: The Unwritten Lessons of Community Living

HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.

This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?

Case Participants

Petitioner Side

  • Will Schreiber (petitioner)
    Complainant
  • Aaron M. Green (petitioner attorney)
    Law Office of Aaron Green, P.C.

Respondent Side

  • Nick Nogami (respondent attorney)
    Represented Respondent at hearing
  • Mark K. Sahl (respondent attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
  • Whitney Bostic (witness)
    Testified for Respondent

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • c. serrano (clerk)
    Transmitting agent for Order
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Kenneth W Zablotny v. Sycamore Hills Estates, Inc.

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Case Summary

Case ID 20F-H2019022-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-03-03
Administrative Law Judge Antara Nath Rivera
Outcome The Administrative Law Judge ruled in favor of the Petitioner, finding that the Respondent violated state statute and community bylaws by failing to allow inspection of books and records. The Respondent was ordered to provide the records and refund the filing fee.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Kenneth W Zablotny Counsel —
Respondent Sycamore Hills Estates, Inc. Counsel —

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge ruled in favor of the Petitioner, finding that the Respondent violated state statute and community bylaws by failing to allow inspection of books and records. The Respondent was ordered to provide the records and refund the filing fee.

Key Issues & Findings

Failure to make books and records reasonably available

Petitioner requested access to the Association's books and records multiple times between 2017 and 2019 to review financial information and other member dues status. The Respondent failed to respond or provide access to the records.

Orders: Respondent shall supply Petitioner with the relevant documents within ten (10) days; Respondent shall pay Petitioner his filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • Bylaws Article X

Video Overview

Audio Overview

Decision Documents

20F-H2019022-REL Decision – 773049.pdf

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20F-H2019022-REL Decision – 773049.pdf

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Briefing Document: Kenneth W. Zablotny v. Sycamore Hills Estates, Inc.

Executive Summary

This briefing document analyzes the administrative law judge (ALJ) decision in the matter of Kenneth W. Zablotny v. Sycamore Hills Estates, Inc. (Case No. 20F-H2019022-REL). The case centers on a homeowner’s petition alleging that his Homeowners Association (HOA) violated Arizona Revised Statutes (A.R.S.) and community bylaws by repeatedly denying access to financial books and records.

Following a hearing on February 13, 2020—which the Respondent (Sycamore Hills Estates, Inc.) failed to attend—the ALJ ruled in favor of the Petitioner. The decision establishes a clear violation of statutory requirements regarding transparency and mandates the Respondent to provide the requested records and reimburse the Petitioner’s filing fees.

Analysis of Key Themes

1. Statutory and Bylaw Compliance

The core of the dispute involves the interpretation and application of A.R.S. § 33-1805 and Article X of the Sycamore Hills Estates Bylaws.

  • Statutory Mandate: Arizona law requires that all financial and other records of an association be made "reasonably available" for examination by members or their designated representatives within ten business days of a request.
  • Bylaw Requirements: The community’s own bylaws reinforce this, stating that records shall be subject to inspection "at all times, during reasonable business hours."
  • The Violation: The ALJ found that the Respondent’s total failure to provide access, despite multiple formal requests, constituted a direct violation of both state law and internal governing documents.
2. Transparency and Accountability

The Petitioner’s request for records was prompted by concerns regarding the financial status of board members and other homeowners during foreclosure proceedings.

  • Conflicting Information: The Association’s manager, Char DuFresne, orally informed the Petitioner that certain homeowners' dues were "up to date." However, the Petitioner later discovered that one homeowner owed $1,600.00 in association fees.
  • Obfuscation Tactics: Even after legal and administrative pressure, the Respondent provided incomplete or unusable information. This included providing data on only one of four accounts and sending a financial statement that was "not legible."
3. Procedural Negligence by the Respondent

A significant theme in this case is the Respondent’s persistent non-responsiveness to both the Petitioner and the legal process.

  • Ignored Communications: Between December 2017 and December 2019, the Respondent ignored a letter from the Petitioner’s attorney, website requests, written requests for in-person viewing, and certified mail.
  • Failure to Appear: Despite receiving a Notice of Hearing from the Arizona Department of Real Estate, the Respondent did not appear, did not request a telephonic appearance, and did not seek a continuance. Consequently, the hearing proceeded in their absence, and the Petitioner’s testimony remained uncontested.

Important Quotes and Context

Quote Context
"Except as provided in subsection B… all financial and other records of the association shall be made reasonably available for examination by any member." A.R.S. § 33-1805(A): This defines the baseline legal requirement for HOA transparency in Arizona.
"The association shall have ten business days to fulfill a request for examination." A.R.S. § 33-1805(A): Establishes the specific timeframe within which an HOA must act once a request is made.
"Respondent’s failure to respond and provide dates and times, within reasonable business hours, was in violation of Section X of the Bylaws." ALJ Conclusion of Law #6: The judge explicitly links the Association's silence to a breach of its own governing documents.
"Ms. DuFresne responded that she did not have time to meet with Petitioner and that she would send him what she had. Ms. DuFresne never sent the books and records." Hearing Evidence #12: Illustrates the dismissive nature of the Association's management regarding a member's legal rights.

Detailed Timeline of Requested Access

Date Action taken by Petitioner Result
Nov 20, 2017 Inquired about board member dues at a meeting. Manager claimed finances were current.
Dec 14, 2017 Attorney sent a letter requesting information via A.R.S. § 33-1805. No response from Respondent.
Mar 24, 2019 Requested expenditure statements via Association website. No response from Respondent.
May 20, 2019 Submitted written request to view books in person. No acknowledgment from Respondent.
Jun 10, 2019 Made a second request to view books and records. No response from Respondent.
Aug 19, 2019 Sent a certified mail request. No response from Respondent.
Sep 9, 2019 Sent a certified letter to the Board of Directors. Board informed Petitioner he could not see documents.
Nov 2019 (Post-Petition) Received a financial statement. Document was not legible.
Dec 3, 2019 Final request to meet in person to view records. No response from Respondent.

Actionable Insights and Orders

The ALJ decision resulted in specific mandates that provide a framework for resolving the dispute:

  • Mandatory Document Disclosure: The Respondent is ordered to supply the Petitioner with all relevant documents within ten (10) days of the Order (dated March 3, 2020), specifically citing books and records from 2017 to 2019.
  • Financial Restitution: The Respondent is required to pay the Petitioner his $500.00 filing fee within thirty (30) days of the Order.
  • Prevailing Party Status: By being deemed the prevailing party, the Petitioner has a recorded legal victory that may influence future disputes or governance within the community.
  • Adherence to "Reasonable Availability": The ruling clarifies that "reasonable availability" is not satisfied by sending illegible documents or claiming a lack of time to meet; it requires proactive coordination of viewing times or delivery of clear copies.
  • Right to Appeal: The order is binding unless a rehearing is requested within 30 days of service. Both parties have the right to request a rehearing with the Commissioner of the Department of Real Estate.

Study Guide: Kenneth W. Zablotny v. Sycamore Hills Estates, Inc.

This study guide provides a comprehensive overview of the administrative hearing between Kenneth W. Zablotny (Petitioner) and Sycamore Hills Estates, Inc. (Respondent). It explores the legal obligations of homeowners associations (HOAs) regarding record transparency, the statutory frameworks governing these disputes, and the specific outcomes of Case No. 20F-H2019022-REL.

Core Themes and Key Concepts

1. Statutory Access to Records (A.R.S. § 33-1805)

Under Arizona law, all financial and other records of a planned community association must be made "reasonably available" for examination by any member or their designated representative.

  • Response Time: The association has ten business days to fulfill a request for examination or to provide copies.
  • Fees: An association cannot charge a member for the time spent making materials available for review, but they may charge a fee of up to fifteen cents per page for copies.
  • Jurisdiction: The Arizona Department of Real Estate has the authority to hear disputes between property owners and planned community associations under A.R.S. § 41-2198.01(B).
2. Legal Exceptions to Disclosure

While transparency is required, A.R.S. § 33-1805(B) identifies specific categories of records that may be withheld from disclosure:

  • Privileged communications between the association and its attorney.
  • Information regarding pending litigation.
  • Minutes of board meetings that are not required to be open to all members.
  • Personal, health, or financial records of individual members, association employees, or contractor employees.
  • Records relating to job performance, compensation, or specific complaints against employees.
3. Burden of Proof and Evidence

In administrative proceedings regarding HOA disputes, the Petitioner bears the burden of proving a violation by a preponderance of the evidence. This means the evidence must show that the fact sought to be proved is more probable than not.

4. Bylaw Obligations

Beyond state statutes, associations are governed by their own Bylaws. In this case, Article X of the Sycamore Hills Estates Bylaws stipulated that association books, records, and papers must be subject to inspection by any member at all times during reasonable business hours.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) The presiding official who conducts the hearing, evaluates evidence, and issues a decision in administrative disputes.
A.R.S. § 33-1805 The Arizona Revised Statute governing the accessibility of financial and other records of a planned community association.
Bylaws The rules and regulations adopted by an organization (like an HOA) for its internal management and government.
Petitioner The party who files the petition or claim; in this case, Kenneth W. Zablotny.
Preponderance of the Evidence Evidence that is of greater weight or more convincing than the evidence offered in opposition.
Respondent The party against whom a petition is filed; in this case, Sycamore Hills Estates, Inc.

Short-Answer Practice Questions

  1. What initiated the Petitioner’s request to see the association’s books?
  • Answer: After receiving conflicting information from the manager regarding whether certain homeowners (including a board member) were current on their dues during foreclosures, the Petitioner sought to verify the financial records.
  1. How many business days does an association have to fulfill a request for examination of records?
  • Answer: Ten business days.
  1. What was the Respondent's response to the Petitioner's multiple requests via website, certified mail, and attorney letters?
  • Answer: The Respondent largely ignored the requests, failed to acknowledge the letters, and eventually provided a single financial statement that was illegible.
  1. What happens if a Respondent fails to appear at the scheduled administrative hearing?
  • Answer: The hearing proceeds in the Respondent’s absence, as happened in this case when Sycamore Hills Estates, Inc. failed to send an authorized member or attorney.
  1. What were the financial consequences ordered against the Respondent?
  • Answer: The Respondent was ordered to pay the Petitioner’s $500.00 filing fee within 30 days.

Essay Prompts for Deeper Exploration

  1. Statutory vs. Internal Governance: Analyze the interplay between A.R.S. § 33-1805 and Article X of the Sycamore Hills Estates Bylaws. How do state laws provide a "floor" for transparency, and how did the Respondent’s failure to respond to "reasonable business hour" requests violate both standards?
  2. The Limits of Privacy in HOAs: Discuss the five categories of records exempt from disclosure under A.R.S. § 33-1805(B). Why is it legally necessary to balance member transparency with the privacy of individual employees and the confidentiality of legal counsel?
  3. The Role of the Administrative Law Judge: Evaluate the process of the administrative hearing as described in the document. How does the ALJ determine "preponderance of the evidence" when one party fails to appear and present a defense?
  4. Enforcement and Remedies: The ALJ ordered the Respondent to provide the records and pay a filing fee but did not find a civil penalty appropriate. Discuss the effectiveness of these remedies in ensuring future compliance with association transparency laws.

Knowledge is Power: How One Homeowner Held Their HOA Accountable for Financial Transparency

1. Introduction: The Right to Know

In the world of planned communities, the relationship between homeowners and their Board of Directors is built on a fundamental covenant: owners provide the capital, and the Board provides responsible stewardship. But far too often, this relationship is poisoned by a culture of opacity. When a Board treats financial records like state secrets rather than the "books and records" of the membership, they aren't just being difficult—they are violating the law.

Transparency is not a favor granted by a benevolent Board; it is a statutory right. The case of Kenneth W. Zablotny vs. Sycamore Hills Estates, Inc. (No. 20F-H2019022-REL) stands as a vital reminder that homeowners do not have to settle for bureaucratic stonewalling. This landmark decision from the Arizona Office of Administrative Hearings showcases how one persistent homeowner dismantled a wall of silence to reclaim his right to financial transparency.

2. The Spark of Suspicion: Why the Request Was Made

Suspicion rarely arises in a vacuum. For Mr. Zablotny, a real estate agent and dedicated attendee of community meetings, the red flags began waving in November 2017. During a board meeting, the association’s manager, Char DuFresne, claimed that a board member whose home was in public foreclosure was nevertheless "current" on their association dues.

When a second homeowner entered foreclosure, DuFresne doubled down on this narrative, insisting the account was up to date. However, the truth eventually leaked through the cracks of the Board's narrative, revealing a deep-seated discrepancy that demanded investigation.

The $1,600 Trigger: Despite the manager's repeated assurances that accounts were current, the Petitioner discovered evidence that a homeowner allegedly owed $1,600.00 in unpaid assessments. This revelation transformed a neighborly inquiry into a necessary legal pursuit for the community’s financial truth.

3. A Timeline of Persistence: Two Years of Ignored Requests

For over two years, Sycamore Hills Estates, Inc. met Mr. Zablotny’s inquiries with a masterclass in bureaucratic delay tactics. The Petitioner’s journey from "neighborly inquiry" to "legal demand" is a roadmap of persistence against a Board that simply refused to govern in the light.

  • December 14, 2017 (The Escalation): Realizing that verbal requests were being ignored, Mr. Zablotny’s attorney sent a formal demand for records pursuant to A.R.S. § 33-1805. The Association responded with total silence.
  • March 24, 2019: Moving to digital channels, the Petitioner requested expenditure statements via the association’s website. No reply.
  • May 20 & June 10, 2019: Two separate written requests were submitted, offering specific dates to view records in person. Both went unacknowledged.
  • August 19 & September 9, 2019: Escalating to certified mail, the Petitioner sent letters to the manager and the Board of Directors. This finally elicited a response—a flat denial stating he was "not permitted" to see the documents.
  • November 2019 (The Obfuscation): After the legal petition was filed, the manager sent partial information on only one of the association's four accounts. When pressed for the others, she claimed she "did not have time" to meet and eventually sent a financial statement that was entirely illegible.
  • December 3, 2019: A final attempt to meet in person was met with the same wall of silence that had characterized the previous 24 months.
4. Decoding the Law: A.R.S. § 33-1805 and Article X

In Arizona, the right to inspect records is protected by a statutory "floor" that no HOA can legally bypass. While a community's Bylaws (referenced by the Judge as Section X, though formally Article X) provide local rules, state law (A.R.S. § 33-1805) provides the teeth for enforcement.

Requirement A.R.S. § 33-1805 (State Law) Article X (Bylaws)
Authority Supersedes all internal HOA rules. Must align with state law.
Availability All financial/other records must be reasonably available. Books/records subject to inspection "at all times."
Timeframe How Fast: Must fulfill request within 10 business days. When: During "reasonable business hours."
Cost No charge for review; max $0.15/page for copies. Copies available at a "reasonable cost."

It is crucial to note that while the law allows an HOA to withhold records under narrow exceptions—such as attorney-client privilege, pending litigation, or personal health/financial records of other members—none of these applied to the general financial books and records Mr. Zablotny requested. The Association’s refusal was not a legal protection; it was a violation.

5. The Verdict: Accountability at the Office of Administrative Hearings

The conflict culminated on February 13, 2020. In a telling display of their attitude toward accountability, Sycamore Hills Estates, Inc. failed to appear at the hearing entirely. This "default" on their responsibilities to the legal system mirrored their two-year default on their responsibilities to their members.

Administrative Law Judge Antara Nath Rivera found that Mr. Zablotny proved his case by a preponderance of the evidence. The HOA's behavior—sending illegible documents, refusing meeting times, and ignoring the 10-day statutory clock—was found to be in clear violation of both state law and their own Bylaws.

The Court’s Order:

  1. Mandatory Production: The HOA was ordered to supply all relevant documents within ten days.
  2. Fee Reimbursement: The HOA was ordered to pay Mr. Zablotny $500.00 to reimburse his filing fee.

While the Judge noted that "No Civil Penalty is found to be appropriate," the victory was absolute in its primary goal: the restoration of transparency and the shifting of legal costs back onto the non-compliant Board.

6. Conclusion: Key Takeaways for Homeowners

The Zablotny victory is a blueprint for every homeowner living under an opaque Board. If your HOA is hiding the numbers, remember these lessons:

  1. Document Everything: Verbal promises mean nothing. Use certified mail to create an undeniable paper trail of your requests and their silence.
  2. State Law is Your Shield: A.R.S. § 33-1805 is the ultimate authority. No HOA manager can "out-rule" the 10-business-day statutory deadline.
  3. Reject "Administrative" Excuses: Claims of being "too busy" or providing "illegible" records are not valid legal defenses. They are admissions of non-compliance.
  4. The ADRE is Your Resource: You don't always need a high-priced Superior Court attorney. The Arizona Department of Real Estate (ADRE) provides a formal petition process to bring these disputes before an Administrative Law Judge.

A healthy community cannot survive in the dark. Board members are stewards, not rulers, and as Kenneth Zablotny proved, the law is the ultimate tool for bringing them back into the light.

Case Participants

Petitioner Side

  • Kenneth W Zablotny (petitioner)
    Appeared on his own behalf; real estate agent

Respondent Side

  • Char DuFresne (property manager)
    Sycamore Hills Estates, Inc.
    Respondent's manager

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of transmitted order

Jennie Bennett v. Catalina Del Rey 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 20F-H2019002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-02-26
Administrative Law Judge Antara Nath Rivera
Outcome The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jennie Bennett Counsel Maxwell Riddiough
Respondent Catalina Del Rey Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs Sections 12(c) and 12(h)(1)

Outcome Summary

The ALJ ordered the Petition dismissed because the Petitioner failed to prove by a preponderance of the evidence that the HOA violated the cited CC&R sections, as the malfunctioning backflow flap was located on the Petitioner's private property and was her responsibility.

Why this result: Petitioner failed to meet the burden of proof that the backflow flap was a common element maintenance responsibility under CC&Rs Sections 12(c) or 12(h)(1).

Key Issues & Findings

Violation of community documents regarding maintenance responsibility for sewage backflow flap.

Petitioner alleged the HOA violated CC&Rs by refusing to pay for repairs related to a malfunctioning backflow flap that caused a sewage overflow, arguing the item was a common element maintenance responsibility.

Orders: Petitioner Jennie Bennett’s Petition was dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs Section 12(c)
  • CC&Rs Section 12(h)(1)
  • CC&Rs Section 15

Analytics Highlights

Topics: HOA, CC&Rs, Maintenance Responsibility, Plumbing, Sewage Overflow, Burden of Proof
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)

Video Overview

Audio Overview

Decision Documents

20F-H2019002-REL-RHG Decision – 771959.pdf

Uploaded 2026-01-23T17:30:01 (103.3 KB)

Briefing Document: Jennie Bennett vs. Catalina Del Rey Homeowners Association

Executive Summary

This document synthesizes the findings, arguments, and conclusions from the Administrative Law Judge (ALJ) Decision in case number 20F-H2019002-REL-RHG, concerning a dispute between homeowner Jennie Bennett (Petitioner) and the Catalina Del Rey Homeowners Association (Respondent).

The core of the dispute was the financial responsibility for repairing a malfunctioning sewage backflow valve that caused an overflow at the petitioner’s residence. The petitioner argued that the HOA violated its Covenants, Conditions, Restrictions and Easements (CC&Rs), specifically Sections 12(c) and 12(h)(1), by refusing to cover the repair costs. The petitioner’s claim was complicated by the fact that the HOA had, just two weeks prior to the incident, rescinded a “Sewer Maintenance Policy” that had previously addressed such issues. The petitioner stated she was not notified of this rescission.

The respondent contended that the backflow valve was located on the petitioner’s private property, not in a common area, making its maintenance the petitioner’s responsibility under Section 15 of the CC&Rs. The HOA asserted that the 2017 policy was rescinded precisely because legal guidance confirmed this distinction. The HOA also maintained that notice of the rescission was sent to all homeowners.

The ALJ ultimately ruled in favor of the respondent, dismissing the petitioner’s petition. The decision concluded that the petitioner failed to meet the burden of proof—a preponderance of the evidence—to establish that the backflow valve was a common element covered by the cited CC&R sections. The evidence, including a plat map and photos, demonstrated the valve was on the petitioner’s private property. While the timing of the policy rescission was deemed “extremely unfortunate,” the ALJ found that once rescinded, the HOA was no longer obligated to share repair costs.

I. Case Overview

• Case Name: Jennie Bennett, Petitioner, vs. Catalina Del Rey Homeowners Association, Respondent.

• Case Number: 20F-H2019002-REL-RHG

• Forum: Arizona Office of Administrative Hearings

• Administrative Law Judge: Antara Nath Rivera

• Hearing Date: February 7, 2020

• Decision Date: February 26, 2020

• Core Allegation: The petitioner alleged that the HOA violated community documents, specifically Sections 12(c) and 12(h)(1) of the CC&Rs.

II. Central Dispute and Timeline of Events

The central issue was whether the HOA was responsible for the cost of repairing a malfunctioning sewage backflow flap on the petitioner’s property.

• March 2017: The HOA adopts a “Sewer Maintenance Policy” to outline processes for sewage maintenance.

• February 13, 2019: The HOA Board rescinds the Sewer Maintenance Policy.

• March 3, 2019: Petitioner Jennie Bennett experiences a sewage overflow at her residence due to a malfunctioning backflow valve.

• March – May 2019: The petitioner brings her concerns to the HOA board at multiple meetings but receives no response.

• May 22, 2019: The HOA responds to the petitioner after receiving a letter from her attorney.

• July 10, 2019: The petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.

III. Petitioner’s Position and Arguments (Jennie Bennett)

The petitioner, a resident for 20 years, argued that the HOA was liable for the repair costs based on the following points:

• CC&R Violation: The refusal to pay for the repair constituted a violation of Sections 12(c) and 12(h)(1) of the CC&Rs, which pertain to the HOA’s duty to maintain sewer lines and common elements.

• Lack of Notice: The petitioner testified she was not notified of the policy rescission on February 13, 2019. The sewage overflow occurred just two weeks later, and upon reporting it, she was informed by a neighbor that the HOA had historically covered such issues.

• Procedural Failure: The HOA failed to address her concerns at the March, April, or May board meetings, only engaging after her attorney intervened.

• Community Support: The petitioner collected 97 signatures on a grassroots petition asking the HOA to cover the repair due to the short time frame between the policy rescission and the incident, and the lack of notice. The petition stated: “I am asking to be covered because of the 2 week time frame and no notice. I agree with being covered by the HOA for the flap.”

IV. Respondent’s Position and Arguments (Catalina Del Rey HOA)

The HOA, represented by community manager Vanessa Lubinsky of Cadden Community Management, presented a defense centered on the distinction between private and common property.

• Private Property Responsibility: The HOA’s primary argument was that the backflow flap was located on the petitioner’s private property and was therefore her responsibility to maintain under Section 15 of the CC&Rs, which governs utilities like plumbing within a homeowner’s lot.

• Evidence of Location: The respondent submitted a plat map and photographs as evidence. The photos illustrated that the backflow flap was located “next to Petitioner’s walk up to her front door,” well within her property lines and not on common elements.

• Plumbing vs. Sewer Issue: Ms. Lubinsky characterized the problem as a “plumbing issue, not a sewer issue,” because of its location on private property.

• Rationale for Policy Change: The 2017 Sewer Maintenance Policy was rescinded after the HOA received “additional legal guidance” confirming that backflow flaps were within homeowners’ units and thus their responsibility under Section 15.

• Notice and Procedure: Ms. Lubinsky testified that notice of the rescission was issued to homeowners via both email and postal mail (postcards). She clarified that the rescission was a board decision that did not require a homeowner vote, as it was not an amendment to the CC&Rs.

V. Relevant Sections of the CC&Rs

The dispute hinged on the interpretation of the following sections of the Declaration of Covenants, Conditions, Restrictions and Easements.

Section

Quoted Text from the Decision

Section 12(c)

“The Association shall maintain and landscape all front and side years open to the street, and shall maintain sewer lines, sidewalks, walkways, brick trim, streets and common recreation areas. …The words “repair or maintain” shall not be construed that the Association shall repair or maintain any individual lot owner’s roof or similar structure.”

Section 12(h)(1)

“Each such lot will be subject to assessments and the owner thereof shall pay to the Associations assessments as follows: Such lots pro rata share of the actual cost to the Association of all repair, maintenance, safety and control of common elements, including but not limited to maintenance of walkways, sidewalks, streets and sewers, care of lawns and landscaping in common areas and front and side yards of residences… .”

Section 15

(Described, not quoted) This section provides that the homeowner is responsible for the maintenance of utilities such as electricity and plumbing on their private property, similar to a single-family residence.

VI. Administrative Law Judge’s Findings and Ruling

The ALJ’s decision was based on the petitioner’s failure to meet the required burden of proof.

• Burden of Proof: The petitioner was required to establish the HOA’s violation by a “preponderance of the evidence,” meaning proof that convinces the trier of fact the contention is more probably true than not.

• Factual Determination: The judge found that the evidence, specifically the photos and plat map, demonstrated conclusively that the backflow flap was on the petitioner’s private property near her front door.

• Conclusion on CC&Rs: Because the flap was determined not to be located within a common area, the petitioner failed to establish that it fell under the purview of Sections 12(c) or 12(h)(1). Therefore, she failed to prove the HOA had a responsibility to repair it under those sections.

• Effect of Policy Rescission: The judge acknowledged, “It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.” However, the ruling stated that once the policy was rescinded, the HOA “was not obligated to share the cost of repairs.”

• Final Order: “IT IS ORDERED that Petitioner Jennie Bennett’s Petition be dismissed.” The order is binding on the parties, with any appeal required to be filed with the superior court within thirty-five days of service.

Study Guide: Bennett v. Catalina Del Rey Homeowners Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, drawing all information directly from the case text.

1. Who were the Petitioner and the Respondent in this case, and what was the legal case number?

2. What specific sections of the community documents did Petitioner Jennie Bennett allege the Respondent had violated?

3. Describe the incident that prompted the dispute and the date on which it occurred.

4. What was the “Sewer Maintenance Policy,” when was it adopted, and when was it rescinded?

5. According to the Respondent’s manager, Vanessa Lubinsky, why was the repair Jennie Bennett’s financial responsibility?

6. What evidence did the Respondent present to prove the location of the malfunctioning backflow flap?

7. What steps did Jennie Bennett take to rally support from her neighbors after the Respondent did not address her concerns?

8. What is the legal standard for the burden of proof in this case, and which party does it fall on?

9. According to Section 12(c) of the CC&Rs, what specific areas is the Homeowners Association responsible for maintaining?

10. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?

——————————————————————————–

Answer Key

1. The Petitioner was Jennie Bennett, represented by attorney Maxwell Riddiough. The Respondent was the Catalina Del Rey Homeowners Association, represented by attorney Nathan Tennyson. The case number was 20F-H2019002-REL-RHG.

2. The Petitioner alleged that the Respondent violated Sections 12(c) and 12(h)(1) of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). This was noted as a single-issue petition.

3. On or about March 3, 2019, the Petitioner experienced a sewage overflow into her house. The overflow was caused by malfunctioning backflow valves.

4. The Sewer Maintenance Policy was a policy adopted in March 2017 to outline the process for sewage maintenance issues. It was rescinded by the HOA Board on February 13, 2019, shortly before the Petitioner’s incident.

5. Vanessa Lubinsky testified that the issue was the Petitioner’s responsibility because the malfunctioning backflow flap was located on her private property. Under Section 15 of the CC&Rs, homeowners are responsible for the maintenance of their own plumbing, electricity, and other utilities.

6. The Respondent presented a plat map, which specified all property lines, and photos. This evidence illustrated that the backflow flap was located inside the lines of the Petitioner’s private property, next to the walk-up to her front door, and not on common elements.

7. The Petitioner obtained 97 signatures on a “Grassroots petition.” The petition explained her situation and argued that she should be covered by the HOA for the repair due to the short time between the policy rescission and her incident, and because she had not received written notice.

8. The legal standard is “preponderance of the evidence,” which means the proof must convince the trier of fact that the contention is more probably true than not. The burden of proof fell on the Petitioner, Jennie Bennett, to establish that the Respondent committed the alleged violations.

9. Section 12(c) states the Association is responsible for maintaining and landscaping front and side yards open to the street. It also specifies the Association’s duty to maintain sewer lines, sidewalks, walkways, brick trim, streets, and common recreation areas.

10. The Administrative Law Judge ordered that Petitioner Jennie Bennett’s Petition be dismissed. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent had violated the CC&Rs.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed to test a deeper, analytical understanding of the case. Formulate a detailed essay response for each prompt, using specific evidence and arguments from the provided text to support your conclusions.

1. Analyze and contrast the core arguments presented by the Petitioner, Jennie Bennett, and the Respondent, Catalina Del Rey Homeowners Association. How did each party use the CC&Rs and the Sewer Maintenance Policy to support their position?

2. Discuss the significance of the Sewer Maintenance Policy’s rescission. Evaluate the timing of the rescission relative to the Petitioner’s incident and the arguments made regarding notification to homeowners.

3. Explain the legal concept of “preponderance of the evidence” as defined in the case document. How did Administrative Law Judge Antara Nath Rivera apply this standard to the evidence presented by both parties to reach a final decision?

4. Evaluate the role of physical evidence, specifically the plat map and photographs, in the outcome of this hearing. Why was determining the precise location of the backflow flap the central issue of the case?

5. From an ethical and community governance perspective, discuss the actions of the Catalina Del Rey Homeowners Association. Consider their decision to rescind the policy, the method of notification, and their initial responses (or lack thereof) to Ms. Bennett’s requests at the board meetings.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Antara Nath Rivera, who presides over hearings at the Office of Administrative Hearings and makes legal decisions and orders.

Burden of Proof

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

Common Elements

Areas within the HOA community that are not part of an individual homeowner’s private property and are maintained by the Association. Examples from the text include walkways, sidewalks, streets, sewers, and recreation areas.

Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs)

The governing legal documents that outline the rules, obligations, and restrictions for a planned community. The Petitioner alleged a violation of Sections 12(c) and 12(h)(1) of these documents.

Homeowners Association (HOA)

The community organization, Catalina Del Rey Homeowners Association, responsible for managing and maintaining the common elements of a planned community as defined by the CC&Rs.

Petitioner

The party who initiates a legal action by filing a petition. In this case, the Petitioner was homeowner Jennie Bennett.

Plat Map

A map, drawn to scale, showing the divisions of a piece of land. In this case, it was used as evidence to specify all property lines, including the Petitioner’s.

Preponderance of the Evidence

The evidentiary standard required to win the case, defined as proof that convinces the trier of fact that a contention is “more probably true than not.” It is described as the “greater weight of the evidence.”

Rescission

The act of canceling or revoking a policy or decision. The HOA Board rescinded its Sewer Maintenance Policy on February 13, 2019.

Respondent

The party against whom a petition is filed. In this case, the Respondent was the Catalina Del Rey Homeowners Association.

A Homeowner’s Sewage Nightmare: 5 Surprising Lessons from a Losing Battle with an HOA

Introduction: The Dreaded HOA Letter

For many homeowners, the greatest fear isn’t a storm or a failing appliance; it’s a sudden, catastrophic repair bill. This anxiety is often magnified for those living in a planned community, where another layer of complexity—the Homeowners Association (HOA)—governs every aspect of property maintenance. A dispute with the HOA can turn a straightforward repair into a frustrating and expensive legal battle.

The case of Jennie Bennett, a resident in her home for 20 years, and the Catalina Del Rey Homeowners Association is a stark cautionary tale. After a sewage overflow caused by a malfunctioning backflow valve, Ms. Bennett found herself in a dispute with her HOA over who should pay for the repair, claiming the association had violated Sections 12(c) and 12(h)(1) of its governing documents. The resulting legal decision reveals critical, and often surprising, insights into how HOA rules are interpreted and enforced. This article breaks down the five most impactful lessons from her losing battle.

1. Location is Everything: The Critical Line Between Private and Common Property

The single most important factor in the judge’s decision was the physical location of the broken part. The entire case hinged on a simple question: was the malfunctioning backflow flap on Jennie Bennett’s private property or in an HOA-maintained common area?

The HOA argued that the plat map and photos proved the flap was located “next to Petitioner’s walk up to her front door,” placing it squarely inside her private property line. While the homeowner claimed the HOA was responsible for “sewer lines” under Sections 12(c) and 12(h)(1) of the Covenants, Conditions, and Restrictions (CC&Rs), this argument failed. The HOA’s manager, Vanessa Lubinsky, perfectly synthesized the association’s legal position when she “opined that the backflow flap was a plumbing issue, not a sewer issue, because it was located on Petitioner’s private property.”

Because the backflow flap was deemed to be on private property, it fell under Section 15 of the CC&Rs. This clause stipulated that the homeowner was responsible for the maintenance of their own plumbing, electricity, and other utilities—much like the owner of a single-family residence. The specific location of the failure, not the general nature of the system it belonged to, determined financial responsibility.

2. An HOA ‘Policy’ Can Vanish Overnight

For nearly two years, from March 2017 to February 2019, the Catalina Del Rey HOA had a “Sewer Maintenance Policy” in place. This policy, which had been in effect for nearly two years, outlined a process for handling sewage maintenance; however, once rescinded, the HOA was no longer obligated to share in repair costs. The Board of Directors rescinded this policy on February 13, 2019. The petitioner’s sewage overflow occurred on March 3, 2019—less than three weeks later.

Crucially, the HOA’s action was not arbitrary. According to case testimony, the board rescinded the policy because, “After Respondent received additional legal guidance, it was determined that the backflow flaps were located within the homeowners’ units and on private property.” This reveals a critical insight: the HOA made a calculated, legally-informed decision to shift liability back to homeowners to align with the CC&Rs.

This also highlights the significant difference between a formal, recorded CC&R and a simple board policy. As the HOA manager clarified, rescinding the policy did not require a homeowner vote because it was not an amendment to the core CC&Rs. A board can unilaterally change a policy, altering the financial obligations of every resident without a community-wide vote.

3. The High Cost of “Extremely Unfortunate” Timing

The timing of the sewage backup, occurring just after the policy change, was a devastating coincidence for the homeowner. The administrative law judge acknowledged this directly in the final decision, stating:

It was extremely unfortunate that Petitioner experienced such a sewage overflow just after Respondent rescinded the Policy.

Compounding the issue was a dispute over communication. The petitioner claimed she “was not notified of the rescission.” In her efforts to be covered, she even gathered 97 signatures on a “Grassroots petition” from her neighbors. The petitioner claimed she received no substantive response from the board regarding her repair claim until her attorney sent a formal letter on May 22, 2019. The HOA countered this, stating that notice of the policy change had been sent to homeowners via both email and postcards.

This takeaway is impactful because it demonstrates how quickly a homeowner’s rights and financial obligations can change. A simple board decision, potentially missed in a stack of mail or an overlooked email, can result in thousands of dollars in unexpected costs.

4. The Burden of Proof Is on the Homeowner, Not the HOA

In any legal dispute, one side has the “burden of proof”—the responsibility to convince the judge that their claim is true. In this HOA case, that burden fell entirely on the petitioner, Jennie Bennett.

The legal standard required her to prove her case by a “preponderance of the evidence.” This standard is defined as evidence that is sufficient to persuade a judge that a claim is more likely true than not. The legal decision provides a clear definition:

“[t]he greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ultimately, the judge concluded that the homeowner did not meet this standard. The final order states, “Petitioner failed to establish by a preponderance of the evidence that Respondent violated Sections 12(c) and 12(h)(1) of the CC&Rs.” This underscores a critical point: when a homeowner challenges an HOA, it is their responsibility to build the winning case with convincing evidence.

Conclusion: Know Your Documents, Know Your Property Lines

The overarching lesson from Jennie Bennett’s experience is that in an HOA, the fine print matters immensely. The precise wording of the governing documents and, as this case proves, the exact location of property lines are paramount. A board policy you rely on today could be gone tomorrow, and a repair you assume is a community responsibility could be deemed yours based on a measurement of inches.

This case serves as a powerful reminder for all homeowners to be proactive. Read your CC&Rs, pay attention to all communications from your board, and understand the difference between binding covenants and changeable policies. It all comes down to one final, critical question: Do you know exactly where your maintenance responsibilities end and your HOA’s begin?

Case Participants

Petitioner Side

  • Jennie Bennett (petitioner)
    Testified at hearing
  • Maxwell Riddiough (petitioner attorney)

Respondent Side

  • Nathan Tennyson (respondent attorney)
    Brown|Olcott, PLLC
  • Vanessa Lubinsky (property manager)
    Cadden Community Management
    Testified on behalf of Respondent
  • Daniel (staff)
    Cadden
    Informed Petitioner about policy rescission

Neutral Parties

  • Antara Nath Rivera (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • JC Niles (witness)
    Mentioned in Petitioner's Grassroots petition

Rick & Lisa Holly v. La Barranca II Homeowners Association

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Case Summary

Case ID 20F-H2019020-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-02-14
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge dismissed the petition, finding that the Petitioners failed to establish by a preponderance of the evidence that the Respondent Homeowners Association violated A.R.S. §§ 33-1803, 33-1811, or 33-1817, or any of the cited CC&R provisions concerning intentional construction delay, conflict of interest, or retaliatory fines.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rick and Lisa Holly Counsel Kevin P. Nelson, Esq.
Respondent La Barranca II Homeowners Association Counsel Edward D. O’Brien, Esq.

Alleged Violations

A.R.S. § 33-1817(B); CC&R Article 11.2.5
A.R.S. § 33-1811; CC&R Article 4.7
A.R.S. § 33-1803; CC&Rs Articles 11.3 and 12

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioners failed to establish by a preponderance of the evidence that the Respondent Homeowners Association violated A.R.S. §§ 33-1803, 33-1811, or 33-1817, or any of the cited CC&R provisions concerning intentional construction delay, conflict of interest, or retaliatory fines.

Why this result: Petitioners failed to meet the burden of proof (preponderance of the evidence) on all three issues alleged in the petition.

Key Issues & Findings

Intentional delay of construction

Petitioners alleged that Respondent intentionally delayed the approval and construction of their new home for over eleven months.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1817(B)
  • CC&R Article 11.2.5

Conflict of interest

Petitioners alleged that a Board Vice President and Secretary (who owned lots adjacent to Petitioners') were blocking approval of the home due to a conflict of interest.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1811
  • CC&R Article 4.7

Retaliatory fines

Petitioners alleged fear of prospective retaliatory imposition of fines.

Orders: Petition dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803(B)
  • CC&R Article 11.3
  • CC&R Article 12

Analytics Highlights

Topics: HOA, Planned Communities Act, Architectural Review Committee (ARC), Construction Delay, Conflict of Interest, Retaliatory Fines
Additional Citations:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1803(B)
  • A.R.S. § 33-1811
  • A.R.S. § 33-1817
  • A.R.S. § 33-1817(B)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R Article 4.7
  • CC&R Article 11.2.5
  • CC&R Article 11.3
  • CC&R Article 12

Video Overview

Audio Overview

Decision Documents

20F-H2019020-REL Decision – 769746.pdf

Uploaded 2026-01-23T17:30:42 (191.2 KB)

This decision by the Office of Administrative Hearings (OAH) addresses a three-issue petition filed by Rick and Lisa Holly (Petitioners), who are members and lot owners in the La Barranca II development, against the La Barranca II Homeowners Association (Respondent). The hearing proceedings took place on February 5 and February 7, 2020.

Key Facts and Background

The dispute centered on the Petitioners' attempt to gain Architectural Review Committee (ARC) approval for the construction of a new home on their property (Lot 50). The approval process had spanned over eleven months. Petitioners alleged that the Respondent violated Arizona statutes (A.R.S. §§ 33-1803, 33-1811, and 33-1817) and certain Covenants, Conditions, and Restrictions (CC&Rs).

Main Issues and Legal Arguments

Petitioners presented three specific claims:

  1. Intentional Delay of Construction: Petitioners asserted that Respondent unreasonably delayed the construction of their home. The Petitioners' timeline expectations were based on their contractor's (Brilar) estimates, not statutes or association documents. The OAH found that Petitioners did not establish any undue delay attributable to the Respondent. Evidence showed that the contractor's initial plans failed to meet the Architectural Guidelines and that delays were more likely due to the contractor's "imperfect understanding of the Guidelines’ requirements". The ARC and its consultant provided guidance and conditional preliminary approval, requiring revisions based on valid considerations. Furthermore, final construction approval in September 2019 was withheld because the required $20,000 refundable construction deposit had not been paid and the site markers (surveyor pins) were missing.
  2. Conflict of Interest: Petitioners alleged a conflict of interest because the Board's vice president, William Bohan, and secretary, Nancy Williams, jointly owned a vacant lot (Lot 49) bordering Lot 50. Petitioners offered only suppositions that Mr. Bohan and Ms. Williams were "blocking approval" due to personal negative opinions. The OAH ruled that Petitioners did not establish that Mr. Bohan had an undeclared conflict of interest under A.R.S. § 33-1811, acknowledging that in a small development, volunteers on the board and ARC will naturally be regulating their neighbors.
  3. Retaliatory Fines: Petitioners feared retaliatory imposition of fines based on the Respondent previously fining other owners for "petty offenses". The OAH concluded that this claim, which implicated A.R.S. § 33-1803(B) concerning monetary penalties, failed because the Respondent had not assessed any fines or penalties against the Petitioners. The claim was based entirely on speculation.

Outcome and Final Decision

Petitioners bore the burden of proving violations by a preponderance of the evidence. Since Petitioners failed to establish by a preponderance of the evidence that Respondent violated any statute or CC&R, the Administrative Law Judge (ALJ) Diane Mihalsky issued a Recommended Order that the petition be dismissed. The Order became binding unless a rehearing was granted.

Questions

Question

Does a board member have a conflict of interest just because they own a lot next to mine?

Short Answer

No. Owning a neighboring lot does not automatically create a conflict of interest or imply bias.

Detailed Answer

The ALJ reasoned that in planned communities, especially smaller ones, board and committee members will inevitably have to regulate their neighbors. Without evidence of actual animus or discriminatory intent, simply owning a contiguous lot is not a conflict of interest that prevents a member from voting on architectural plans.

Alj Quote

In any homeowners’ association, but especially In a small development having only 71 lots, the persons who volunteer to serve on homeowners’ associations’ boards and ARCs will necessarily be regulating their neighbors.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • Conflict of Interest
  • Board of Directors
  • Neighbors

Question

Is the Architectural Review Committee (ARC) required to help me design my home to meet the guidelines?

Short Answer

No. The ARC's role is to review submitted plans for compliance, not to assist in the design process.

Detailed Answer

While an ARC might offer guidance, the decision clarifies that their official duty is strictly to review plans against the governing documents. They are not obligated to help owners or builders design compliant structures.

Alj Quote

It is not ARC’s job to help an owner design a home that complies with Respondent’s Guidelines, only to review plans that are submitted for compliance.

Legal Basis

CC&Rs Article 11

Topic Tags

  • Architectural Review
  • Design Guidelines
  • HOA Obligations

Question

Can I file a complaint against my HOA because I am afraid they might fine me in the future?

Short Answer

No. You cannot base a legal complaint on the speculation of future retaliatory fines.

Detailed Answer

The Administrative Law Judge ruled that a petition cannot rely on fear of potential future actions. Unless the HOA has actually assessed a fine or penalty, a claim regarding retaliatory fines is considered speculative and will be dismissed.

Alj Quote

Any prospective prohibition on fines would be based on nothing but speculation. . . . Petitioners have not established that Respondent violated A.R.S. § 33-1803(B) or Articles 11.3 or 12 by assessing retaliatory fines or penalties against Petitioners.

Legal Basis

A.R.S. § 33-1803(B)

Topic Tags

  • Fines
  • Retaliation
  • Dispute Resolution

Question

Who has to prove that the HOA violated the rules in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the petition must prove that the HOA violated the statutes or CC&Rs. The standard of proof is a 'preponderance of the evidence,' meaning the homeowner must show it is more likely than not that the violation occurred.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Hearings

Question

Is the HOA responsible for delays if my builder doesn't understand the design guidelines?

Short Answer

No. The HOA is not liable for delays caused by a builder's failure to submit compliant plans.

Detailed Answer

If an HOA's architectural committee is reasonably responsive to submissions, they are not at fault for construction delays resulting from a contractor's misunderstanding of the design rules or failure to meet requirements.

Alj Quote

On this record, it appears that Hoamco and the ARC were reasonably responsive . . . and that any delay in construction appears more likely based on Brilar principal’s imperfect understanding of the Guidelines’ requirements.

Legal Basis

A.R.S. § 33-1817(B)

Topic Tags

  • Architectural Review
  • Construction Delays
  • Vendor Issues

Question

Can I rely on my contractor's timeline estimates for when the HOA will approve my plans?

Short Answer

No. You should rely on the timelines specified in the CC&Rs and statutes, not third-party estimates.

Detailed Answer

The ALJ noted that a homeowner's expectations based on their builder's estimates are not binding on the HOA. The official governing documents determine the procedural timeline, and reliance on outside estimates does not constitute a violation by the HOA.

Alj Quote

Mrs. Holly candidly testified that Petiitoners’ expectations about how long it would take to build their house was based on Brilar’s principles’ estimates, not anything in statutes or Respondent’s CC&Rs . . .

Legal Basis

N/A

Topic Tags

  • Timelines
  • Construction
  • Expectations

Question

Can the HOA charge a fee for reviewing architectural plans?

Short Answer

Yes, if the CC&Rs allow for it.

Detailed Answer

The decision affirms that CC&Rs can grant the Architectural Review Committee the power to assess reasonable fees in connection with the review of plans.

Alj Quote

Article 11.3 of Respondent’s CC&Rs concerns general provisions for the ARC, including that it may assess reasonable fees in connection with its review of plans . . .

Legal Basis

CC&Rs Article 11.3

Topic Tags

  • Fees
  • Architectural Review
  • CC&Rs

Case

Docket No
20F-H2019020-REL
Case Title
Rick and Lisa Holly vs. La Barranca II Homeowners Association
Decision Date
2020-02-14
Alj Name
Diane Mihalsky
Tribunal
OAH
Agency
ADRE

Questions

Question

Does a board member have a conflict of interest just because they own a lot next to mine?

Short Answer

No. Owning a neighboring lot does not automatically create a conflict of interest or imply bias.

Detailed Answer

The ALJ reasoned that in planned communities, especially smaller ones, board and committee members will inevitably have to regulate their neighbors. Without evidence of actual animus or discriminatory intent, simply owning a contiguous lot is not a conflict of interest that prevents a member from voting on architectural plans.

Alj Quote

In any homeowners’ association, but especially In a small development having only 71 lots, the persons who volunteer to serve on homeowners’ associations’ boards and ARCs will necessarily be regulating their neighbors.

Legal Basis

A.R.S. § 33-1811

Topic Tags

  • Conflict of Interest
  • Board of Directors
  • Neighbors

Question

Is the Architectural Review Committee (ARC) required to help me design my home to meet the guidelines?

Short Answer

No. The ARC's role is to review submitted plans for compliance, not to assist in the design process.

Detailed Answer

While an ARC might offer guidance, the decision clarifies that their official duty is strictly to review plans against the governing documents. They are not obligated to help owners or builders design compliant structures.

Alj Quote

It is not ARC’s job to help an owner design a home that complies with Respondent’s Guidelines, only to review plans that are submitted for compliance.

Legal Basis

CC&Rs Article 11

Topic Tags

  • Architectural Review
  • Design Guidelines
  • HOA Obligations

Question

Can I file a complaint against my HOA because I am afraid they might fine me in the future?

Short Answer

No. You cannot base a legal complaint on the speculation of future retaliatory fines.

Detailed Answer

The Administrative Law Judge ruled that a petition cannot rely on fear of potential future actions. Unless the HOA has actually assessed a fine or penalty, a claim regarding retaliatory fines is considered speculative and will be dismissed.

Alj Quote

Any prospective prohibition on fines would be based on nothing but speculation. . . . Petitioners have not established that Respondent violated A.R.S. § 33-1803(B) or Articles 11.3 or 12 by assessing retaliatory fines or penalties against Petitioners.

Legal Basis

A.R.S. § 33-1803(B)

Topic Tags

  • Fines
  • Retaliation
  • Dispute Resolution

Question

Who has to prove that the HOA violated the rules in a hearing?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the petition must prove that the HOA violated the statutes or CC&Rs. The standard of proof is a 'preponderance of the evidence,' meaning the homeowner must show it is more likely than not that the violation occurred.

Alj Quote

Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.

Legal Basis

A.R.S. § 41-1092.07(G)(2)

Topic Tags

  • Legal Standards
  • Burden of Proof
  • Hearings

Question

Is the HOA responsible for delays if my builder doesn't understand the design guidelines?

Short Answer

No. The HOA is not liable for delays caused by a builder's failure to submit compliant plans.

Detailed Answer

If an HOA's architectural committee is reasonably responsive to submissions, they are not at fault for construction delays resulting from a contractor's misunderstanding of the design rules or failure to meet requirements.

Alj Quote

On this record, it appears that Hoamco and the ARC were reasonably responsive . . . and that any delay in construction appears more likely based on Brilar principal’s imperfect understanding of the Guidelines’ requirements.

Legal Basis

A.R.S. § 33-1817(B)

Topic Tags

  • Architectural Review
  • Construction Delays
  • Vendor Issues

Question

Can I rely on my contractor's timeline estimates for when the HOA will approve my plans?

Short Answer

No. You should rely on the timelines specified in the CC&Rs and statutes, not third-party estimates.

Detailed Answer

The ALJ noted that a homeowner's expectations based on their builder's estimates are not binding on the HOA. The official governing documents determine the procedural timeline, and reliance on outside estimates does not constitute a violation by the HOA.

Alj Quote

Mrs. Holly candidly testified that Petiitoners’ expectations about how long it would take to build their house was based on Brilar’s principles’ estimates, not anything in statutes or Respondent’s CC&Rs . . .

Legal Basis

N/A

Topic Tags

  • Timelines
  • Construction
  • Expectations

Question

Can the HOA charge a fee for reviewing architectural plans?

Short Answer

Yes, if the CC&Rs allow for it.

Detailed Answer

The decision affirms that CC&Rs can grant the Architectural Review Committee the power to assess reasonable fees in connection with the review of plans.

Alj Quote

Article 11.3 of Respondent’s CC&Rs concerns general provisions for the ARC, including that it may assess reasonable fees in connection with its review of plans . . .

Legal Basis

CC&Rs Article 11.3

Topic Tags

  • Fees
  • Architectural Review
  • CC&Rs

Case

Docket No
20F-H2019020-REL
Case Title
Rick and Lisa Holly vs. La Barranca II Homeowners Association
Decision Date
2020-02-14
Alj Name
Diane Mihalsky
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Rick Holly (petitioner)
    La Barranca II Homeowners Association Member
  • Lisa Holly (petitioner)
    La Barranca II Homeowners Association Member
    Also referred to as Mrs. Holly
  • Kevin P. Nelson (petitioner attorney)
    Tiffany & Bosco
  • Brian Bracken (witness/contractor's principal)
    Brilar Homes, LLC
    Petitioners' general contractor
  • Larry E. Smith (witness/contractor's principal)
    Brilar Homes, LLC
    Petitioners' general contractor

Respondent Side

  • La Barranca II Homeowners Association (respondent)
    HOA party
  • Edward D. O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Alexia Firehawk (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • William Bohan (HOA board member/ARC member/witness)
    La Barranca II Homeowners Association
    Board Vice President
  • Nancy Williams (HOA board member/ARC member)
    La Barranca II Homeowners Association
    Board Secretary
  • Luke Hyde (property manager staff)
    Hoamco
    Architectural Department Manager
  • Josh Hall (property manager staff)
    Hoamco
    Architectural Department Staff
  • Neil True (architect consultant)
    Hoamco/ARC Consultant
    Consultant architect reviewing plans

Neutral Parties

  • Diane Mihalsky (ALJ)
    OAH
  • John Davis (fire marshall)
    Sedona District Fire Marshall
    Consulted by HOA regarding dumpster placement
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate

John B. Clark Jr. v. Foothills Community Association

Posted on by

Case Summary

Case ID 20F-H2019007-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-02-04
Administrative Law Judge Velva Moses-Thompson
Outcome The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated its Articles of Incorporation or Bylaws when removing him from the Design Review Committee. The judge found the HOA replaced the Petitioner to ensure quorum could be met, not for pretextual or political reasons.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John B. Clark Jr. Counsel Mitchell Vasin
Respondent Foothills Community Association Counsel B. Austin Baillio

Alleged Violations

Articles of Incorporation 1, 5, 6, 11, 12, 15; Bylaws Art II 2.3, Art III 3.5, Art IV 4.8(c)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated its Articles of Incorporation or Bylaws when removing him from the Design Review Committee. The judge found the HOA replaced the Petitioner to ensure quorum could be met, not for pretextual or political reasons.

Why this result: The HOA provided evidence that the removal was based on the need to ensure quorum for meetings, given Petitioner's frequent absences. Petitioner did not meet the burden of proof to show bad faith or specific bylaw violations.

Key Issues & Findings

Removal from Design Review Committee

Petitioner alleged the HOA removed him from the Design Review Committee (DRC) for pretextual reasons and in bad faith, violating various Articles and Bylaws.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Video Overview

Audio Overview

Decision Documents

20F-H2019007-REL Decision – 767866.pdf

Uploaded 2026-04-24T11:22:49 (103.9 KB)

20F-H2019007-REL Decision – 767866.pdf

Uploaded 2026-01-27T21:17:29 (103.9 KB)

Administrative Law Judge Decision: Clark v. Foothills Community Association (No. 20F-H2019007-REL)

Executive Summary

In February 2020, Administrative Law Judge (ALJ) Velva Moses-Thompson issued a decision in the matter of John B. Clark Jr. v. Foothills Community Association. The case centered on a petition filed by Mr. Clark, a long-term member of the Association’s Design Review Committee (DRC), who was removed from his position in July 2019.

The Petitioner alleged that his removal was based on "pretextual" reasons and "bad faith," asserting violations of the Association's Articles of Incorporation and Bylaws. The Respondent, Foothills Community Association, maintained that the removal was necessitated by the Petitioner's chronic absenteeism and the DRC's requirement to meet a quorum to conduct business.

The ALJ ruled in favor of the Association, dismissing the petition. The decision concluded that the Petitioner failed to meet the burden of proof required to establish any violations of governing documents or statutes. The ruling affirmed that the Association's need for operational efficiency and quorum maintenance constituted a valid, non-pretextual reason for removing a committee member.

Analysis of Key Themes

1. Operational Necessity and Quorum Requirements

The central justification for the Petitioner's removal was the Association's inability to ensure a quorum for DRC meetings. The DRC meetings were held on the second Wednesday of every month. Evidence presented by the Respondent indicated that the Petitioner’s attendance had been significantly inconsistent:

  • Long-term attendance: Since April 2015, the Petitioner attended 19 out of 54 meetings.
  • Recent attendance: In the 18 meetings prior to his removal, the Petitioner attended only four.

The Association argued that while alternates could be called when a quorum was not met, those alternates were often unavailable. Consequently, the Board determined that replacing the Petitioner with a more consistently available member was necessary for the Committee to conduct business efficiently.

2. Allegations of Pretext and "Politics"

The Petitioner contended that his removal "wreaked of politics" and was done in bad faith. He argued that:

  • His professional commitments as an Air Force Reservist, realtor, and American Airlines pilot were known to the Board since 2011.
  • A change in meeting time from 3:00 PM to 2:00 PM made attendance more difficult.
  • No one had previously expressed concerns regarding his absences.

Despite these assertions, the ALJ found that the Petitioner provided no substantive evidence to prove that the Association’s stated reason—the need for a quorum—was a pretext for a different, underlying motive.

3. Procedural Compliance and Governance

The Association demonstrated adherence to procedural requirements regarding the removal and appointment of committee members:

  • Notice and Agendas: Meeting notices and agendas for the May and June 2019 Board meetings (where DRC appointments were discussed) were uploaded to the Association's website.
  • Public Deliberation: The minutes of the May 22, 2019, meeting noted that new members would be appointed. The June 26, 2019, minutes recorded the unanimous approval of two new DRC members and two alternates.
  • Documentation: The Respondent’s Bylaws (Article IV, Section 4.8(c)) require the secretary to keep minutes of all proceedings, a duty the ALJ found the Association had fulfilled.
4. Legal Standards and Jurisdiction

The case highlighted several critical legal boundaries:

  • Burden of Proof: The Petitioner bore the burden of proof to establish violations by a "preponderance of the evidence"—meaning the contention is more probably true than not. The ALJ found the Petitioner failed this standard for all alleged violations.
  • Jurisdictional Limits: The ALJ noted that the Office of Administrative Hearings (OAH) lacks jurisdiction to determine violations of A.R.S. § 10-3830.
  • Attorney's Fees: The Respondent’s request for attorney’s fees was denied. The ALJ ruled that the Department of Real Estate and OAH are not empowered by statute to award attorney's fees in these specific administrative proceedings, as they do not constitute a "court action."

Important Quotes and Context

Regarding the Removal Notice

"With the need for the Committee to meet quorum on a monthly basis to conduct business in an efficient manner for the homeowners, and recognizing your commitments and schedule often necessitate your absence, the Board has selected a new member for the Committee."

— Foothills Board of Directors, Letter to John B. Clark Jr. (July 10, 2019)

Context: This was the formal notification sent to the Petitioner. It framed the removal as a matter of organizational efficiency rather than personal performance or misconduct.

Regarding Attendance Records

"The truth of the matter is, since April of 2015 you have attended only 19 of the 54 DRC meetings and only 4 of the last 18."

— Michael Owen (Board Member), Email to Petitioner (July 16, 2019)

Context: This email provided the factual basis for the Board's decision, countering the Petitioner's claim that his removal was politically motivated.

Regarding the ALJ's Legal Conclusion

"Petitioner failed to establish by a preponderance of the evidence that Respondent removed him from the DRC for a pretextual reason. The preponderance of the evidence shows that Respondent removed Petitioner and replaced him with a new member due to its desire to meet quorum on a monthly basis."

— Velva Moses-Thompson, Administrative Law Judge

Context: This is the core legal finding that led to the dismissal of the petition, affirming the Association's right to manage committee membership based on attendance.

Actionable Insights

For Homeowners' Associations (HOAs)
  • Maintain Rigorous Attendance Records: The Association’s ability to provide specific attendance statistics (19 of 54 meetings) was crucial in defending against claims of "pretext."
  • Utilize Public Agendas and Minutes: Transparency in documenting when committee changes will be discussed and decided protects the Board from allegations of "bad faith" or "secret" dealings.
  • Link Removals to Operational Needs: When removing a volunteer or committee member, framing the decision around "the need to meet quorum" and "conduct business in an efficient manner" provides a defensible, objective rationale.
For Committee Members and Volunteers
  • Communication of Absences is Not Immunity: While the Petitioner asserted he always notified the DRC of his absences, the ruling suggests that even "excused" or explained absences can lead to removal if they hinder the committee's ability to reach a quorum.
  • Monitor Association Digital Platforms: The Petitioner claimed he was unaware of the pending changes, but the ALJ noted that notices and agendas were available on the Association website and sent via standard channels.
Procedural Note on Litigation
  • Attorney's Fee Limitations: Parties entering administrative hearings through the Arizona Department of Real Estate should be aware that, unlike standard civil litigation, the prevailing party is generally not entitled to recover attorney's fees because the hearing is an administrative claim rather than a court "action."

Comprehensive Study Guide: Clark v. Foothills Community Association (Case No. 20F-H2019007-REL)

This study guide provides a comprehensive overview of the administrative hearing between John B. Clark Jr. (Petitioner) and Foothills Community Association (Respondent). It explores the legal issues, findings of fact, and the ultimate decision rendered by the Administrative Law Judge (ALJ) regarding a dispute over removal from a homeowners’ association committee.

I. Key Concepts

Administrative Jurisdiction and Authority

The Arizona Department of Real Estate is authorized by statute to receive and decide petitions regarding homeowners’ associations (HOAs). While the Department has jurisdiction over certain Title 33 violations, an Administrative Law Judge (ALJ) does not have jurisdiction over all laws; for instance, the ALJ in this case noted a lack of jurisdiction to determine violations of A.R.S. § 10-3830.

Burden of Proof: Preponderance of the Evidence

In administrative hearings of this nature, the Petitioner bears the burden of proof. They must establish that the Respondent violated the governing documents (Articles of Incorporation or Bylaws) by a "preponderance of the evidence." This standard means the contention must be shown to be more probably true than not, possessing superior evidentiary weight that inclines a fair mind to one side.

The Role of the Design Review Committee (DRC)

The DRC is a specialized committee within the HOA. Maintaining a quorum—the minimum number of members required to be present—is essential for the committee to conduct business efficiently for the homeowners.

Procedural Transparency

HOA operations are governed by transparency requirements. This includes:

  • Notice and Agendas: Meeting notices and agendas must be uploaded to the association’s website.
  • Open Sessions: Significant actions, such as the appointment or removal of committee members, should be recorded in the minutes of Board of Director’s Open Session Meetings.
  • Record Keeping: Bylaws typically require the secretary to keep minutes of all proceedings of the Board and the Members.
Attorney’s Fees in Administrative Hearings

In Arizona administrative proceedings involving a member’s petition against an HOA filed with the Department of Real Estate, the Department and the Office of Administrative Hearings (OAH) are not empowered to award attorney’s fees. This is because such hearings are not considered "actions" under the statutes that typically authorize such awards.

II. Short-Answer Practice Questions

1. Who were the primary parties involved in Case No. 20F-H2019007-REL?

Answer: John B. Clark Jr. (Petitioner) and Foothills Community Association (Respondent).

2. How long did the Petitioner serve on the Design Review Committee (DRC) before his removal?

Answer: From 2011 to 2019.

3. What specific reason did the Board of Directors provide in their July 10, 2019, letter for selecting a new DRC member?

Answer: The need for the Committee to meet quorum on a monthly basis and the recognition that the Petitioner's schedule necessitated frequent absences.

4. According to the testimony of Michael Owen, what was the Petitioner’s attendance record for DRC meetings since April 2015?

Answer: He attended only 19 of 54 DRC meetings, and only 4 of the most recent 18.

5. Which specific Articles of Incorporation did the Petitioner allege were violated?

Answer: Articles 1, 5, 6, 11, 12, and 15.

6. What was the Petitioner's professional background, and why did it impact his attendance?

Answer: He was an Air Force Reservist, a realtor, and a pilot for American Airlines. His "on call" schedule as a pilot made it difficult to attend meetings, especially after the meeting time was moved from 3:00 PM to 2:00 PM.

7. On what dates were the Open Session Meetings held where the DRC membership was discussed and finalized?

Answer: May 22, 2019, and June 26, 2019.

8. What was the ALJ’s final ruling regarding the Petitioner’s claim of "pretextual" removal?

Answer: The ALJ concluded the Petitioner failed to prove the removal was pretextual, finding instead that the Respondent removed him due to the desire to meet quorum monthly.

9. Why was the Respondent’s request for attorney’s fees denied?

Answer: The legislature has not authorized the Department or OAH to award attorney’s fees in these specific administrative proceedings.

III. Essay Prompts for Deeper Exploration

1. Analyzing the Preponderance of Evidence Explain the concept of "preponderance of the evidence" as defined in the document. How did this standard influence the ALJ's decision to dismiss the petition despite the Petitioner’s claims of political motivations?

2. Organizational Efficiency vs. Member Commitment The Board acknowledged the Petitioner’s years of service but ultimately replaced him to ensure a quorum. Discuss the balance between an HOA’s duty to its members to "conduct business in an efficient manner" and its relationship with long-serving volunteers who have professional scheduling conflicts.

3. Procedural Due Process in HOAs The Petitioner claimed he was removed in "bad faith" and for "pretextual" reasons. Evaluate the role of the Association’s website, meeting minutes, and agendas in providing a defense against these claims. How does documented transparency (as shown by Ms. Wontor's testimony) serve as a legal safeguard for homeowners’ associations?

IV. Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who conducts hearings and makes decisions in disputes involving administrative agencies.
Bylaws The internal rules and regulations that govern the day-to-day operations of an organization, such as an HOA.
Design Review Committee (DRC) A committee within an HOA responsible for reviewing and approving changes to properties to ensure they meet community standards.
Homeowners’ Association (HOA) An organization in a planned community that makes and enforces rules for the properties and its residents.
Jurisdiction The official power to make legal decisions and judgments over a specific matter or geographic area.
Preorderance of the Evidence The evidentiary standard in civil cases where a claim is proved if it is shown to be more likely true than not.
Pretextual A reason given in justification of a course of action that is not the real reason; a false excuse.
Quorum The minimum number of members of an assembly or committee that must be present at any of its meetings to make the proceedings of that meeting valid.
Respondent The party against whom a petition is filed; in this case, the Foothills Community Association.
Statute A written law passed by a legislative body.

Attendance and Authority: Lessons from a Design Review Committee Removal Dispute

1. Introduction: A Conflict in the Foothills

In the administrative case of John B. Clark Jr. vs. Foothills Community Association, we see a classic governance conflict: the tension between a volunteer’s personal professional excellence and the operational needs of a homeowners’ association (HOA). Mr. Clark, a long-serving volunteer on the Design Review Committee (DRC) from 2011 to 2019, challenged his removal after the Board of Directors replaced him to ensure consistent meeting quorums. The resulting legal battle, adjudicated by the Arizona Office of Administrative Hearings (OAH), serves as a masterclass in how boards must navigate "bad faith" allegations and "pretextual" removal claims. This post analyzes the Administrative Law Judge's (ALJ) decision and provides actionable insights for boards facing similar volunteer disputes.

2. The Petitioner’s Case: Claims of Political Pretext

The Petitioner, Mr. Clark, was a highly accomplished community member—an Air Force Reservist, realtor, and pilot for American Airlines. His defense fell into a common "governance trap": the belief that professional stature and a history of service create a permanent right to a committee seat, regardless of current availability. Clark argued that the Board had been aware of his demanding "on call" schedule since 2011 and that he consistently communicated his availability.

When the Board removed him in 2019, Clark alleged the decision "reeked of politics" and was executed in bad faith. He claimed his removal violated several of the Association’s governing documents, specifically:

  • Articles of Incorporation: Articles 1, 5, 6, 11, 12, and 15.
  • Bylaws: Article II, Section 2.3; Article III, Section 3.5; and Article IV, Section 4.8(c).

Clark’s frustration stemmed from a lack of prior warnings regarding his absences, particularly after a meeting time change from 3:00 p.m. to 2:00 p.m. made his attendance more difficult. However, as the ruling would show, a volunteer's personal schedule does not override the Association’s duty to maintain a functioning committee.

3. The Association’s Defense: The Reality of Meeting Quorum

The Foothills Community Association (the Respondent) framed the removal not as a personal or political attack, but as an operational necessity. In a formal letter dated July 10, 2019, the Board thanked Mr. Clark for his years of service while explicitly stating that the DRC required a monthly quorum to conduct business efficiently for all homeowners.

To prove this wasn't "pretextual," the Association relied on hard data provided by Board member Michael Owen.

The Attendance Record The Association’s records revealed a significant lack of participation. Since April 2015, the Petitioner attended only 19 out of 54 DRC meetings. More critically, he attended only 4 of the last 18 meetings prior to his removal.

The Association further demonstrated a transparent process. Community Manager Patricia Wontor testified that meeting notices and agendas were posted on the association's website. Crucially, the Board proved that the decision was not made in the dark: the open session minutes from May 22, 2019, and June 26, 2019, documented the discussion and unanimous approval of the new DRC appointments.

4. The ALJ Decision: Burden of Proof and Findings of Fact

In these proceedings, the Petitioner bears the burden of proof under the "Preponderance of the Evidence" standard. This requires proving that a contention is "more probably true than not," or that the evidence has "the most convincing force."

The ALJ found that Clark failed to meet this burden. While Clark felt the removal was political, the Association’s documented evidence of poor attendance provided a legitimate, non-pretextual reason for the Board’s action.

A vital legal takeaway for boards is the "Jurisdiction Gap" identified in this case. The Petitioner attempted to argue that the Association violated A.R.S. § 10-3830. However, the ALJ ruled that the OAH lacked jurisdiction over this statute. This is because the Department of Real Estate and OAH are limited to hearing disputes regarding Title 33 (the HOA and Planned Communities statutes). A.R.S. § 10-3830 falls under Title 10 (the Nonprofit Corporation Act). Homeowners often attempt to use corporate law in these hearings, but a Governance Specialist knows that administrative judges are strictly confined to the "single-issue" jurisdiction of Title 33.

5. Why Attorney's Fees Were Denied

A significant risk for associations in OAH disputes is the "American jurisprudence" principle regarding legal costs. Even though the Foothills Community Association prevailed, their request for attorney’s fees was denied.

In Arizona, A.R.S. § 12-341.01(A) allows a winning party to recover fees in "actions" arising out of a contract. However, the ALJ clarified that an administrative hearing before the Department of Real Estate is not an "action" in the legal sense. Because the legislature has not specifically granted the OAH the power to award fees in these administrative member petitions, each party must bear their own costs. Boards should always weigh this financial reality—that they may win the case but still lose the legal fees—when deciding whether to litigate or settle.

6. Key Takeaways for Homeowners and Boards

This case provides a roadmap for defensible committee management:

  1. Attendance is Essential: Participation logs are the ultimate defense. Boards have a fiduciary duty to ensure committees can meet quorum; if a member cannot participate, removal is a legitimate and defensible operational choice.
  2. Minutes are the "Smoking Gun": The Association’s victory was secured by the May 22 and June 26, 2019 minutes. These proved the Board followed a transparent process in open sessions, neutralizing claims of "secret" political maneuvering.
  3. The Burden of Proof is High: Petitioners must provide more than "feelings" of bad faith. They must provide evidence that outweighs the Association’s documented business reasons.
  4. Know Your Statutes: Administrative hearings are restricted. Arguments based on the Nonprofit Corporation Act (Title 10) will likely be dismissed for lack of jurisdiction in a forum designed for Title 33 disputes.

7. Conclusion

The dispute in the Foothills highlights the need for clear, proactive communication regarding volunteer expectations. While the Association's decision was legally sound, a formal attendance policy might have prevented the dispute entirely.

The Final Order, issued February 4, 2020, dismissed the petition and stands as a binding decision. For any party dissatisfied with such a ruling, the only recourse is a formal request for a rehearing, which must be filed with the Commissioner of the Department of Real Estate within 30 days of the order's service. This case serves as a reminder that in HOA governance, objective data and recorded minutes are a board’s strongest shield.

Case Participants

Petitioner Side

  • John B. Clark Jr. (petitioner)
    Foothills Community Association
    Homeowner; former Design Review Committee (DRC) member; Air Force Reservist; realtor; pilot
  • Mitchell Vasin (petitioner attorney)
    Vasin & Rocco, PLLC
    Appeared on behalf of Petitioner

Respondent Side

  • B. Austin Baillio (respondent attorney)
    Maxwell & Morgan, P.C.
    Appeared on behalf of Respondent
  • Patricia Wontor (property manager)
    Premier Community Management
    Community Manager for Foothills Community Association; witness
  • Michael Owen (board member)
    Foothills Community Association
    Witness; sent email to Petitioner regarding removal
  • Jeffrey B. Corben (respondent attorney)
    Maxwell & Morgan, P.C.
    Listed on service list

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
  • A. Leverette (clerk)
    Office of Administrative Hearings
    Signed transmission of order

Mary J Bartle vs. Saguaro West Owner’s 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-H1919059-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-01-30
Administrative Law Judge Thomas Shedden
Outcome The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Mary J Bartle Counsel —
Respondent Saguaro West Owner's Association Counsel Nicole Payne, Esq.

Alleged Violations

Bylaws Article VIII, section 8(d)

Outcome Summary

The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.

Why this result: Petitioner failed to show by a preponderance of the evidence that the transactions violated the specific duties of the treasurer set out in Bylaws Article VIII, section 8(d).

Key Issues & Findings

Alleged violation of Treasurer duties regarding fund transactions

The petitioner alleged the Association violated Bylaws Article VIII, section 8(d) by withdrawing and redepositing $49,000.50 from the operating account. The ALJ concluded that Petitioner failed to show by a preponderance of the evidence that these transactions violated the specific duties of the treasurer set forth in that section.

Orders: Petitioner Mary J. Bartle’s petition is dismissed and Respondent is deemed the prevailing party in this matter.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section and title 12, chapter 7, article 6
  • ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: HOA, Bylaws, Treasurer Duties, Dismissal, Burden of Proof, Rehearing
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section and title 12, chapter 7, article 6
  • ARIZ. REV. STAT. section 12-904(A)

Video Overview

Audio Overview

Decision Documents

19F-H1919059-REL-RHG Decision – 767041.pdf

Uploaded 2026-01-23T17:29:24 (94.6 KB)

Briefing Document: Bartle vs. Saguaro West Owner’s Association (Case No. 19F-H1919059-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the matter of Mary J. Bartle vs. Saguaro West Owner’s Association. The final order, issued on January 30, 2020, dismissed the petition brought by Ms. Bartle. The core of the case revolved around a financial transaction where $49,000.50 was withdrawn from the Association’s operating account on October 22, 2018, and redeposited on November 30, 2018.

The petitioner, Ms. Bartle, alleged this transaction violated a specific provision of the Association’s bylaws—Article VIII, section 8(d)—which outlines the duties of the Treasurer. Despite two hearings, the Administrative Law Judge consistently concluded that Ms. Bartle failed to meet her burden of proof. The central finding was that while evidence suggested the transaction “may have been in violation of the law or otherwise improper,” the petitioner did not demonstrate, by a preponderance of the evidence, how this transaction specifically violated any of the enumerated duties of the Treasurer as set forth in the cited bylaw. The decision underscores a critical legal distinction between a potentially improper act and a proven violation of the specific bylaw under which the complaint was filed.

Case Overview

Case Name

Mary J. Bartle, Petitioner, vs. Saguaro West Owner’s Association, Respondent

Case Number

19F-H1919059-REL-RHG

Jurisdiction

Arizona Department of Real Estate, Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Thomas Shedden

Petitioner

Mary J. Bartle (representing herself)

Respondent

Saguaro West Owner’s Association (represented by Nicole Payne, Esq.)

Rehearing Date

January 14, 2020

Final Decision Date

January 30, 2020

Procedural History and Core Allegation

The case proceeded through an initial hearing and a subsequent rehearing, following a specific timeline of events:

• April 22, 2019: Ms. Bartle filed the initial petition with the Arizona Department of Real Estate.

• August 29, 2019: The first hearing was held. At the outset, a discussion was held to narrow the scope of the hearing. Ms. Bartle agreed to limit her petition to a single issue.

• The Single Issue: Whether the Association violated Bylaws Article VIII, section 8(d) through a withdrawal of $49,000.50 on October 22, 2018, and a redeposit of the same amount on November 30, 2018.

• September 18, 2019: The initial Administrative Law Judge Decision was issued, dismissing Ms. Bartle’s petition.

• October 23, 2019: Ms. Bartle filed a request for a rehearing, asserting an error in the admission of evidence.

• November 18, 2019: The Department of Real Estate granted the request for a rehearing.

• January 14, 2020: The rehearing was convened. Ms. Bartle testified, while the Respondent presented no witnesses.

• January 30, 2020: The final Administrative Law Judge Decision was issued, reaffirming the dismissal of the petition.

At the rehearing, Ms. Bartle testified “to the effect that laws must have been violated by the withdrawal and redepositing of the $49,000.50 without the Association’s members being provided any notice of these transactions.”

Analysis of Bylaw and Judicial Findings

Bylaw Article VIII, Section 8(d): The Treasurer’s Duties

The entirety of the petitioner’s case rested on proving a violation of the specific duties outlined for the Treasurer in the Association’s bylaws. The text of the bylaw is as follows:

The Treasurer shall receive and deposit in the Association’s bank accounts all monies received by the Association and shall disburse such funds as directed by resolution [of] the Board of Directors; shall properly prepare and sign all checks before presenting them to be co-signed; keep proper books of account; cause an annual audit of the Association’s books to be made by a public accountant at the completion of each fiscal year; and shall prepare an annual budget to be presented to the membership at the annual meeting; to cause all Federal and State reports to be prepared; and shall prepare all monthly statements of finance for the Board of Directors.

Key Judicial Findings and Conclusions

The Administrative Law Judge’s decision hinged on the petitioner’s failure to connect the disputed financial transaction to a specific violation of the duties listed above. The judge made a clear distinction between the potential impropriety of the transaction and the narrow scope of the legal claim.

• Initial Hearing Conclusion: The decision from the first hearing, which the judge took notice of in the rehearing, established the core finding:

• Rehearing Conclusion: The final decision after the rehearing reinforced this exact point, stating:

Ultimately, the case was dismissed because Ms. Bartle did not meet the legal standard required to prove her specific claim.

Legal Framework and Final Order

Applicable Legal Standards

The decision was grounded in several key legal principles cited by the Administrative Law Judge:

• Jurisdiction: The Arizona Department of Real Estate possesses authority over the matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

• Burden of Proof: Ms. Bartle, as the petitioner, bore the burden of proof on all issues.

• Standard of Proof: The standard was a “preponderance of the evidence,” 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.”

• Contractual Nature of Bylaws: Citing McNally v. Sun Lakes Homeowners Ass’n #1, Inc., the decision notes that “The Bylaws are a contract between the parties and the parties are required to comply with its terms.”

Final Order and Implications

Based on the failure to meet the burden of proof, the Administrative Law Judge issued a binding order with the following key points:

1. Dismissal: Petitioner Mary J. Bartle’s petition is dismissed.

2. Prevailing Party: The Respondent, Saguaro West Owner’s Association, is deemed the prevailing party.

3. Appeal Rights: A party wishing to appeal the order must seek judicial review with the superior court within thirty-five days from the date the order was served, as prescribed by ARIZ. REV. STAT. sections 12-904(A) and Title 12, Chapter 7, Article 6.

Study Guide: Bartle v. Saguaro West Owner’s Association

This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1919059-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the legal matter.

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Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the case document.

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

2. What specific financial transaction was the central subject of the petitioner’s complaint?

3. Which specific article and section of the Association’s Bylaws did the petitioner claim was violated?

4. What was the legal standard of proof that the petitioner was required to meet, and who had the burden of proof?

5. On what grounds did Ms. Bartle file her request for a rehearing after the initial decision?

6. According to the judge’s decision, what was the key failure in the petitioner’s argument regarding the financial transaction?

7. What was the final order issued by the Administrative Law Judge on January 30, 2020?

8. Although the judge dismissed the petition, what did the decision state about the nature of the financial transactions?

9. Which government department granted the request for a rehearing and has authority over this type of matter?

10. What options does a party have if they wish to appeal the final administrative law judge order?

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Answer Key

1. The primary parties were the Petitioner, Mary J. Bartle, and the Respondent, Saguaro West Owner’s Association. Ms. Bartle brought the petition against the Association, alleging a violation of its bylaws.

2. The central subject was the withdrawal of $49,000.50 from the Association’s operating account on October 22, 2018. The same amount was subsequently redeposited into the account on November 30, 2018.

3. The petitioner claimed the Association violated Bylaws Article VIII, section 8(d). This section outlines the specific duties and responsibilities of the Association’s Treasurer.

4. The standard of proof was a “preponderance of the evidence.” The burden of proof was on the petitioner, Ms. Bartle, to demonstrate that the Association had violated the bylaw.

5. Ms. Bartle filed her Rehearing Request on the grounds that there was an error in the admission of evidence. She specifically referenced documents dated July 5, August 6, and September 13, 2019, in her request.

6. The key failure was that Ms. Bartle did not show by a preponderance of the evidence that the withdrawal and redeposit specifically violated any of the treasurer’s duties as explicitly listed in Bylaws Article VIII, section 8(d). Her claim was too narrow for the evidence she presented.

7. The final order was that Petitioner Mary J. Bartle’s petition be dismissed. The Respondent, Saguaro West Owner’s Association, was deemed to be the prevailing party in the matter.

8. The decision stated that there was evidence to suggest that the withdrawal and redeposit of the $49,000.50 “may have been in violation of the law or otherwise improper.” However, this was not sufficient to prove a violation of the specific bylaw in question.

9. The Arizona Department of Real Estate granted the rehearing on November 18, 2019. This department has authority over the matter as established by ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

10. A party wishing to appeal the order must seek judicial review as prescribed by Arizona Revised Statutes. The appeal must be filed with the superior court within thirty-five days from the date the order was served upon the parties.

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Essay Questions

Instructions: Consider the following questions for a deeper analysis of the case. Formulate a comprehensive response based solely on the information provided in the source document.

1. Analyze the concept of “preponderance of the evidence” as defined in the decision. Explain why Mary J. Bartle failed to meet this standard, despite the judge’s acknowledgment that the transaction may have been “improper” or in “violation of the law.”

2. Discuss the procedural significance of limiting the hearing to the single issue of Bylaws Article VIII, section 8(d). How might the case’s outcome have differed if the scope of the hearing had been broader?

3. Trace the complete timeline of the case from the initial petition filing in April 2019 to the final order in January 2020. What do the key events and dates reveal about the process of administrative hearings and rehearings?

4. Based on the full text of Bylaws Article VIII, section 8(d), what specific types of evidence would the petitioner have needed to present to successfully prove that the treasurer’s duties were violated by the $49,000.50 transaction?

5. Evaluate the distinction made by the Administrative Law Judge between a transaction that is potentially illegal or improper and a transaction that specifically violates the duties enumerated in Bylaws Article VIII, section 8(d). Why is this distinction critical to the final order of dismissal?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, weighs evidence, and issues decisions on matters under the jurisdiction of a government agency. In this case, the ALJ was Thomas Shedden.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a compilation of rules and regulations of Arizona’s state agencies. Section R2-19-119 is cited as establishing the standard of proof.

ARIZ. REV. STAT.

The Arizona Revised Statutes, which are the codified laws of the state of Arizona. Various sections are cited to establish jurisdiction and the appeals process.

Bylaws

A set of rules established by an organization, such as a homeowners’ association, to regulate itself. In this case, the bylaws are treated as a binding contract between the parties.

Conclusion of Law

The section of a legal decision where the judge applies legal principles and statutes to the established facts of the case.

Finding of Fact

The section of a legal decision that lists the factual determinations made by the judge based on the evidence presented during the hearing.

Judicial Review

The process by which a court of law reviews the decision of a lower court or an administrative agency to determine if the decision was legally sound.

Office of Administrative Hearings (OAH)

A state agency that provides a neutral forum for conducting administrative hearings for other state agencies. The hearings in this matter were held at the OAH.

Petitioner

The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, the petitioner was Mary J. Bartle.

Preponderance of the Evidence

The standard of proof in most civil cases. It is met when the evidence presented has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Prevailing Party

The party in a legal dispute who is successful and in whose favor the judgment is rendered. In this case, the Respondent was deemed the prevailing party.

Rehearing

A second hearing of a case to consider new evidence or to argue against the original decision on the basis of an error. Ms. Bartle’s request for a rehearing was granted.

Respondent

The party against whom a petition is filed. In this case, the respondent was the Saguaro West Owner’s Association.

A Homeowner Found a Mysterious $49,000 Transaction in Her HOA’s Books. The Reason She Lost in Court Is a Lesson for Everyone.

Introduction: The David-vs-Goliath Fight That Didn’t Go as Planned

For many homeowners, dealing with a Homeowners’ Association (HOA) can feel like a constant battle for transparency and fairness. It’s a common story: a resident raises concerns about financial decisions made behind closed doors, only to be met with resistance or silence. But what happens when a homeowner pushes back and takes that fight to an administrative hearing?

After an initial hearing and a persistent request for a rehearing, the final decision in Mary J. Bartle’s case against the Saguaro West Owner’s Association seemed, on the surface, like a clear-cut quest for accountability. The dispute centered on a single, alarming event: the withdrawal and subsequent redeposit of $49,000.50 from the association’s operating account without any notice to the members. It appeared to be a straightforward case of a concerned resident demanding answers.

However, the ruling from the administrative hearing offers a surprising and crucial lesson in how the legal system operates. The outcome reveals that suspicion, no matter how justified, is not enough to win. This article breaks down the top counter-intuitive takeaways from the judge’s decision and what they mean for any homeowner considering a legal challenge against their HOA.

Takeaway 1: A “Suspicious” Act Isn’t a Guaranteed Win

Feeling Something Is Wrong Isn’t the Same as Proving It.

The core facts of the case were not in dispute. On October 22, 2018, $49,000.50 was withdrawn from the Saguaro West Owner’s Association’s operating account. On November 30, 2018, the exact same amount was redeposited. Members were not notified of these transactions. To any reasonable observer, this activity raises immediate questions.

Even the Administrative Law Judge presiding over the case acknowledged the questionable nature of the transaction. In his final decision, he validated Ms. Bartle’s initial concerns with a striking statement:

The evidence shows that $49,000.50 was withdrawn from the Association’s account in October 2018 and the same amount was deposited in November 2018, and there is evidence to suggest that the transactions may have been in violation of the law.

This is the most stunning part of the case: the judge agreed that the transaction looked suspicious and might have broken the law, yet Ms. Bartle still lost. This reveals a critical distinction in legal proceedings. A judge is not an arbiter of general fairness but an interpreter of specific laws and rules. The judge’s comment shows he understood the spirit of Ms. Bartle’s complaint, but his hands were tied by the letter of her petition. The legal system requires more than a gut feeling; it demands specific proof that a specific rule was violated, which leads directly to the next critical lesson.

Takeaway 2: You Must Prove theExactRule Was Broken

Specificity Is Your Only Weapon.

Ms. Bartle’s case was ultimately narrowed to a single, highly specific issue: whether the $49,000.50 transaction violated Article VIII, section 8(d) of the association’s bylaws. This is a crucial detail because courts and administrative bodies require this rigid specificity to ensure fairness, prevent “moving goalposts,” and keep proceedings focused on the actual claims filed, not a general feeling of grievance.

Her entire case hinged on proving a violation of that specific section and no other. The rule in question outlines the treasurer’s duties, which include the power to: “receive and deposit…all monies,” “disburse such funds as directed,” “sign all checks,” and “keep proper books of account.”

The judge’s conclusion was brutally precise. He found that Ms. Bartle had “not shown by a preponderance of the evidence” that the transaction violated any of those specific, listed duties. She couldn’t prove the treasurer failed to deposit money or keep proper books; she could only prove a strange transaction occurred that wasn’t explicitly forbidden by the rule she cited. This is a critical lesson: it doesn’t matter if an HOA’s action feels wrong; what matters is whether you can prove it violated the precise rule you cited in your petition.

Takeaway 3: The Burden of Proof Rests Entirely on the Accuser

It’s Your Job to Build the Case, Not Theirs to Disprove It.

In a civil administrative hearing like this, the petitioner—Ms. Bartle—carries the “burden of proof.” The standard she had to meet was the “preponderance of the evidence.” The legal definition for this is:

“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.”

In simple terms, she had to present enough convincing evidence to make the judge believe that her version of events was more likely true than not. The judge’s decision explicitly states that Ms. Bartle bore this burden and ultimately failed to meet it.

One of the most powerful details from the case file illustrates this point perfectly: the Saguaro West Owner’s Association, though represented by legal counsel, “presented no witnesses.” They didn’t have to. They didn’t need to explain the transaction or justify their actions because Ms. Bartle failed to build a strong enough case to prove her specific claim. The onus was completely on her to prove her argument, and when it fell short, the case was dismissed.

Conclusion: A Sobering Reminder for Homeowners

The case of Mary Bartle is a sobering reminder that winning a legal fight against a well-resourced entity like an HOA is less about moral rightness and more about meticulous legal strategy and precision.

While the judge acknowledged that Ms. Bartle’s concerns about the $49,000.50 transaction were potentially valid, her petition was dismissed not on a simple technicality, but because of a core principle of law: the failure to prove that the specific rule cited had actually been broken. Her case highlights the immense challenge for individual homeowners seeking transparency. It leaves us asking, if the legal bar is this specific, what practical recourse do residents have when they feel something is fundamentally wrong?

Case Participants

Petitioner Side

  • Mary J Bartle (petitioner)
    Appeared on her own behalf and testified

Respondent Side

  • Nicole Payne (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Counsel for Saguaro West Owner's Association
  • Edith Rudder (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Counsel for Saguaro West Owner's Association

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Robert L Greco v. Bellasera Community Association, Inc.

Posted on by

Case Summary

Case ID 20F-H2019018-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-29
Administrative Law Judge Tammy L. Eigenheer
Outcome The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert L Greco Counsel —
Respondent Bellasera Community Association, Inc. Counsel Nathan Tennyson

Alleged Violations

A.R.S. § 33-1803(B)

Outcome Summary

The Administrative Law Judge concluded that Bellasera Community Association, Inc. did not violate A.R.S. § 33-1803(B) because the homeowner received constructive notice of the violation and fine structure, satisfying statutory requirements. The petition was dismissed.

Why this result: Petitioner failed to meet the burden of proving Respondent violated A.R.S. § 33-1803(B), as the evidence showed Petitioner received sufficient constructive notice of the alleged violation and had an opportunity to be heard or appeal.

Key Issues & Findings

Whether the HOA violated statutory requirements regarding notice and imposition of monetary penalties/late fees, resulting in suspension of privileges.

Petitioner alleged the HOA violated A.R.S. § 33-1803(B) by imposing fines and suspending gate/clubhouse access without providing adequate (actual) notice of the violation and hearing opportunity, and by improperly imposing late fees. The ALJ found the HOA provided constructive notice, satisfying the statute, and was entitled to impose cumulative fines for the ongoing violation.

Orders: Petitioner’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1803(B)
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • BLACK'S LAW DICTIONARY 1220
  • BLACK'S LAW DICTIONARY 1090

Analytics Highlights

Topics: HOA fines, Constructive notice, Statutory violation, Access suspension, Maintenance violation
Additional Citations:

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

Video Overview

Audio Overview

Decision Documents

20F-H2019018-REL Decision – 766844.pdf

Uploaded 2026-01-23T17:30:37 (133.7 KB)

Briefing Document: Greco v. Bellasera Community Association, Inc.

Executive Summary

This document synthesizes the findings and decision in the case of Robert L. Greco (Petitioner) versus the Bellasera Community Association, Inc. (Respondent), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge dismissed the petition, ruling in favor of the Homeowners Association (HOA).

The core dispute originated from a 2013 violation notice regarding a faded garage door. The Petitioner claimed he did not receive the initial notices and only became aware of the issue upon receiving a letter from the HOA’s attorney. Despite subsequently painting the door, an outstanding balance of $750 in fines remained on his account. For six years, the Petitioner paid his quarterly dues but ignored the outstanding fine balance. In June 2019, after failed settlement negotiations, the HOA deactivated the Petitioner’s security gate fob and clubhouse access, prompting him to file the formal dispute.

The judge’s decision rested on two key legal conclusions. First, the court rejected the Petitioner’s argument that “actual notice” was required for the fines to be valid. It ruled that the multiple notices mailed to the Petitioner’s residence constituted sufficient “constructive notice” under Arizona law, providing both notification of the violation and an opportunity to be heard. Second, the court determined that the $750 charge was not an improper late fee but rather three separate, legitimate fines of $250 each, levied for an ongoing, uncorrected violation as per the HOA’s enforcement policy.

Case Overview

Case Name

Robert L Greco, Petitioner, vs. Bellasera Community Association, Inc., Respondent

Case Number

20F-H2019018-REL

Jurisdiction

Arizona Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Hearing Date

January 9, 2020

Decision Date

January 29, 2020

Petitioner’s Core Allegation

Respondent violated A.R.S. § 33-1803(B) by imposing penalties and revoking privileges without providing proper notice and an opportunity to be heard.

Core Factual Issue

The denial of automatic gate and clubhouse access to the Petitioner on July 1, 2019, due to unpaid fines from 2013.

Chronology of the Dispute

The conflict between Mr. Greco and the Bellasera Community Association unfolded over six years, escalating from a minor maintenance issue to a formal legal dispute and revocation of privileges.

Initial Violation and Fines (2013)

Details

Feb. 5, 2013

Courtesy Notice

Respondent sent a notice to Petitioner’s address stating his garage door was faded and needed to be repainted, in violation of the Design Guidelines.

Mar. 14, 2013

Final Notice & First Fine

A follow-up notice was sent, stating a $250 fine was posted to Petitioner’s account. It warned that an additional $250 fine would be assessed automatically every 14 days if the violation remained uncorrected.

Apr. 2, 2013

Notice of Remedy & Second Fine

A third notice was sent, posting another $250 fine. This letter explicitly warned that the HOA had the “ability to suspend privileges for use of the Recreational Facilities” and informed the Petitioner of his right to appeal within 14 days.

May 7, 2013

Fourth Notice & Third Fine

A fourth notice was sent, posting another $250 fine to the account. It again noted the right to appeal the fine.

Jun. 5, 2013

Letter from HOA Counsel

Attorney Kelly Oetinger sent a letter demanding the garage door be repainted within 15 days. The letter explicitly stated, “If you do not repaint… the Association may disable the transponder you use to enter the community and may disable the fobs you use for the clubhouse.”

Petitioner’s Response and Aftermath (2013)

• July 4, 2013: Petitioner repainted the garage door.

• July 5, 2013: Petitioner sent a letter to the HOA stating the attorney’s letter was his “initial alert of the garage door condition.” He explained his delay by stating, “To effectively manage my workload, I dispose of unsolicited mail… In the future, I will exercise greater caution in disposing of unsolicited mail.”

• July 5, 2013: The HOA sent a letter acknowledging the repainting and offered to settle the $900 in fines for a payment of $500. The letter reiterated the threat to deactivate gate openers and fobs.

• July 17, 2013: The HOA sent a follow-up letter correcting an internal accounting error. The total fines were $750, not $900. A new settlement offer was made: pay $375, and the remaining $375 would be waived.

Period of Inaction (2013 – 2019)

From 2013 to 2019, the Petitioner received quarterly statements from the HOA indicating a $750 balance in addition to current assessments. Each quarter, the Petitioner would physically cross out the $750 balance and pay only the current assessment amount.

Escalation and Revocation of Privileges (2019)

• June 2019: Dennis Carson, a friend of the Petitioner serving on the HOA Board of Directors, informed him that his name was on a penalty list and the Board planned to deactivate his security gate and clubhouse access.

• June 2019: Settlement negotiations failed. The Petitioner offered $100; the Board countered with $250. The Petitioner then offered $251 ($250 for the fine and $1 to rent the clubhouse), which the Board declined.

• July 1, 2019: The Respondent deactivated the Petitioner’s security gate fob and access to the clubhouse.

• October 11, 2019: The Petitioner filed the Homeowners Association Dispute Process Petition, initiating the legal proceedings.

Key Arguments and Legal Findings

The Administrative Law Judge’s decision centered on the interpretation of “notice” as required by state law and the legitimacy of the fines imposed by the HOA.

Petitioner’s Position

1. Lack of Proper Notice: The Petitioner argued that he had not received “actual notice” of the violation or the impending fines until the letter from the HOA’s counsel on June 5, 2013. He asserted that because he acted promptly after receiving that letter, the fines were unjust. His argument implied that warnings in mail he did not personally read could not be held against him.

2. Improper Fines: The Petitioner alleged that the additional $500 in charges on the original $250 fine constituted improper late fees.

Administrative Law Judge’s Conclusions of Law

The Judge systematically refuted the Petitioner’s arguments, concluding that the HOA acted within its rights and in accordance with the law.

1. On the Matter of Notice:

• The governing statute, A.R.S. § 33-1803(B), requires “notice and an opportunity to be heard” before imposing penalties.

• The Judge found no legal authority requiring this to be “actual notice.” To accept this argument would create an unworkable standard where a homeowner could “avoid receiving ‘actual notice’ by simply refusing to sign for a certified mailing.”

• The decision established that the Petitioner received constructive notice through the “multiple mailings that were presumably delivered to his residential address.”

• The notices also informed the Petitioner how to appeal the matter, thereby satisfying the requirement for an “opportunity to be heard.”

• Conclusion: “Accordingly, Petitioner was provided notice and an opportunity to be heard in accordance with A.R.S. § 33-1803(B).”

2. On the Matter of Fines:

• The Judge differentiated between late fees and fines for an ongoing violation.

• The notices sent by the Respondent “clearly stated that an ongoing failure to remedy the violation would result in additional fines every 14 days.”

• The violation persisted from before March 14, 2013 (first fine) until July 5, 2013 (when the door was confirmed painted).

• Conclusion: The Respondent was entitled to impose three separate fines for the “ongoing condition of the garage door,” making the total of $750 legitimate.

Final Order and Implications

Based on the analysis of the evidence and law, the Administrative Law Judge reached a definitive conclusion.

• Final Ruling: “This Tribunal concludes that Respondent did not violate the provisions of A.R.S. § 33-1803(B).”

• Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”

• Binding Nature: The order, dated January 29, 2020, is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.

Study Guide: Greco v. Bellasera Community Association, Inc.

This guide provides a comprehensive review of the Administrative Law Judge Decision in the case of Robert L. Greco (Petitioner) versus Bellasera Community Association, Inc. (Respondent), Case No. 20F-H2019018-REL. It includes a short-answer quiz to test your knowledge, an answer key for review, a set of essay questions for deeper analysis, and a glossary of key terms.

Short-Answer Quiz

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

1. Who were the Petitioner and Respondent in this case, and what was the Petitioner’s central complaint that initiated the legal action?

2. What specific violation of the community’s rules was the Petitioner initially accused of, and which governing documents were cited as being violated?

3. Describe the timeline of notices and fines issued by the Respondent between February and May 2013.

4. What was the Petitioner’s explanation for not responding to the initial violation notices from the Respondent before receiving a letter from the association’s attorney?

5. What actions did the Respondent take in or around June 2019 that led the Petitioner to file his petition with the Arizona Department of Real Estate?

6. What was the Petitioner’s primary legal argument regarding the “notice” required by the Arizona statute A.R.S. § 33-1803(B)?

7. How did the Administrative Law Judge differentiate between “actual notice” and “constructive notice” in her decision?

8. Why did the judge ultimately conclude that the Respondent had provided the Petitioner with adequate “notice and an opportunity to be heard”?

9. Explain the Petitioner’s allegation about improper late fees and the reason the judge rejected this argument.

10. What was the final order of the Administrative Law Judge in this case, and what recourse was available to the parties?

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Answer Key

1. The Petitioner was homeowner Robert L. Greco, and the Respondent was the Bellasera Community Association, Inc. (the HOA). Greco’s central complaint, filed on October 11, 2019, was that the HOA had denied him automatic gate access and use of clubhouse facilities on July 1, 2019, despite his being a long-term resident with timely payment of all quarterly dues.

2. The Petitioner was accused of having a faded garage door that needed to be repainted. The violation was cited as being contrary to the CC&Rs (Covenants, Conditions and Restrictions), specifically Article V, Section 5.2, and the community’s Design Guidelines, specifically Article III, Section J.

3. The Respondent sent an initial “Courtesy Notice” on February 5, 2013. This was followed by a “Final Notice” with a $250 fine on March 14, a “Notice of Remedy” with another $250 fine on April 2, and a “Fourth Notice of Non-Compliance” with another $250 fine on May 7, 2013.

4. The Petitioner claimed that the attorney’s letter, received around June 5, 2013, was his “initial alert” regarding the garage door condition. He stated that he routinely disposes of unsolicited mail without reading it and had inadvertently discarded the previous notices sent by the Respondent.

5. In June 2019, after failed settlement negotiations over the outstanding $750 in fines from 2013, the Respondent deactivated the Petitioner’s security gate fob and his access to the clubhouse. This action prompted the Petitioner to file his dispute petition.

6. The Petitioner’s primary argument was that he did not receive “actual notice” of the violation until the attorney’s letter. He contended that because he acted promptly to correct the violation after receiving actual notice, he should not have been fined.

7. The judge used definitions from Black’s Law Dictionary. “Actual notice” was defined as notice given directly to, or personally received by, a party. “Constructive notice” was defined as notice arising by presumption of law from facts and circumstances that a party had a duty to take notice of.

8. The judge concluded that the multiple notices mailed to the Petitioner’s residential address constituted “constructive notice” of the violation. Because the relevant statute, A.R.S. § 33-1803(B), does not explicitly require “actual notice,” and the mailings also advised him of his right to appeal, the judge found the Respondent had fulfilled its obligation to provide notice and an opportunity to be heard.

9. The Petitioner alleged that the additional $500 in fines were improper late fees on the original $250 fine. The judge rejected this, clarifying that the Respondent’s notices stated that additional fines would be assessed every 14 days for an ongoing failure to remedy the violation. Therefore, the additional charges were three separate fines for the “ongoing condition of the garage door,” not late fees.

10. The final order was that the Petitioner’s petition be dismissed. The parties were notified that this order was binding unless a request for rehearing was filed with the Commissioner of the Department of Real Estate within 30 days.

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Essay Questions

The following questions are designed for deeper analysis and discussion. No answers are provided.

1. Analyze the Administrative Law Judge’s reasoning for favoring “constructive notice” over “actual notice” in the context of A.R.S. § 33-1803(B). Discuss the potential consequences for homeowners and HOAs if the ruling had required “actual notice.”

2. Trace the negotiation attempts between the Petitioner and the Respondent in 2013 and 2019. Evaluate the effectiveness of these attempts and discuss whether the dispute could have been resolved without formal legal proceedings.

3. The Petitioner argued that the fines imposed after the initial $250 were improper late fees. The judge, however, characterized them as new fines for an “ongoing condition.” Based on the evidence presented in the notices, construct an argument supporting both the Petitioner’s and the judge’s interpretation.

4. Discuss the concept of “burden of proof” in this case. Explain what “preponderance of the evidence” means and identify the key pieces of evidence that allowed the judge to conclude the Respondent did not violate the statute.

5. Examine the roles of the various community governing documents cited in this case (CC&Rs, Design Guidelines, Violation Enforcement policy). Explain how these documents worked together to grant the Respondent the authority to take action against the Petitioner.

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Glossary of Key Terms

Definition

A.R.S. § 33-1803(B)

The Arizona Revised Statute central to this case, which permits an HOA board to impose reasonable monetary penalties for violations after providing “notice and an opportunity to be heard.”

Actual Notice

As defined in the decision, it is “[n]otice given directly to, or received personally by, a party.”

Administrative Law Judge (ALJ)

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

Bellasera Community Association, Inc.

The Respondent in the case; the homeowners association (HOA) for the Bellasera Community in Arizona.

An acronym for Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents for the community, which the Petitioner was found to have violated (specifically Article V, Section 5.2).

Constructive Notice

As defined in the decision, it is “[n]otice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of.” The judge ruled that mail sent to a residence constitutes this form of notice.

Design Guidelines

A set of rules established by the HOA governing the aesthetic appearance of properties. The Petitioner was found in violation of Article III, Section J of these guidelines.

Petitioner

The party who initiates a legal action or petition seeking a ruling. In this case, it was the homeowner, Robert L. Greco.

Preponderance of the evidence

The standard of proof required in this hearing. It is defined as “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force.”

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, it was the HOA.

He Threw Away His Mail for Years. His HOA’s Response Is a Warning to Every Homeowner.

That official-looking envelope from your Homeowners Association sits on the counter, a silent challenge. It’s easy to dismiss it as a newsletter or a bland reminder, just another piece of paper to be sorted later. But what if it isn’t? What if that envelope is a legal summons in disguise, the first shot in a battle you don’t even know you’re fighting?

For Robert L. Greco, a resident in his community for 17 years, this hypothetical became a harsh reality. He learned that ignoring HOA correspondence can ignite a conflict that smolders for years before erupting into severe consequences. Originating from a maintenance issue as simple as a faded garage door, his case offers a masterclass in the powerful lessons every homeowner should heed.

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1. The “I Didn’t Read It” Defense Doesn’t Work

The central pillar of the homeowner’s defense was disarmingly simple: he claimed he never received the first four violation notices because he habitually throws away what he considers “unsolicited mail.” He argued that without having read the warnings, he couldn’t be held responsible for the fines.

The judge’s ruling, however, invoked a foundational legal concept that extends far beyond HOA disputes into areas like property deeds and public records: the difference between “actual notice” and “constructive notice.” While actual notice means you personally saw the information, constructive notice presumes you have knowledge of something because it was delivered properly—in this case, mailed to the correct address. Whether you open the envelope is irrelevant.

In a July 5, 2013 letter, the homeowner unwittingly sealed his own fate by describing his mail-handling routine:

Routinely, Saturdays are my mail-pick-up days, and invariably, I walk straight to the re-cyclable container, and deposit the mail in the receptacle… I was astonished to learn that my garage door failed inspection. This is my initial alert of the garage door condition.

For homeowners, the takeaway is a stark one: in the eyes of the law, your recycling bin is not a valid legal defense. The burden doesn’t fall on an HOA to ensure you read your mail, only to send it. The responsibility to open and review all official correspondence rests squarely on the homeowner.

2. A Tiny Issue Can Snowball into a Years-Long Standoff

The timeline of this dispute reveals a classic case of conflict avoidance, where a minor, fixable problem was allowed to spiral into a major legal battle. The cost of a can of paint and a Saturday afternoon of work was ultimately dwarfed by a six-year, $750 dispute that cost the homeowner his access to his own community.

• February 5, 2013: The HOA sends its first “Courtesy Notice” regarding a faded garage door in need of repainting.

• March – May 2013: After no response, the HOA issues three more notices, levying escalating fines that total $750.

• 2013 to 2019: For six years, the homeowner receives quarterly statements showing the $750 balance. Each time, he would “cross out the $750.00 balance and pay the current assessment.”

• June/July 2019: The HOA finally forces the issue by deactivating his security gate fob and his access to the clubhouse.

This progression shows how a simple lack of communication transformed a weekend chore into a years-long standoff. By ignoring the notices and the subsequent fines, the homeowner allowed a molehill to grow into a mountain of conflict.

3. “Continuing Violation” Fines Are Not Late Fees

The homeowner contended that the HOA was improperly stacking late fees on top of an initial $250 penalty. However, the administrative law judge highlighted a critical distinction embedded in the association’s rules.

The HOA wasn’t charging late fees on a single, past-due penalty. It was levying new fines for a “continuing violation.” The notice sent on March 14, 2013, explicitly warned that “an additional fine of $250 will be assessed automatically every 14 days… if the violation remains uncorrected.”

This is a crucial detail found in many HOA bylaws. An unpainted garage door is not a one-time offense; it is an ongoing breach of community standards. A homeowner who thinks they are simply letting a single fine sit unpaid may actually be incurring entirely new violations over time, dramatically increasing their financial liability.

4. Failed Negotiations Can Cost More Than Money

Twice, this dispute could have been resolved. The breakdown in negotiations, however, reveals how ego and principle can prove more costly than the fines themselves.

The first attempt came in 2013, after the homeowner had finally painted the garage. The HOA initially offered to settle a supposed $900 balance for $500. This, however, was based on an “internal accounting error.” In a subsequent letter, the HOA apologized, corrected the record to show the true balance was $750, and made a formal offer: pay half—just $375—and the matter would be closed. The offer was not accepted. Including this error shows the HOA was not infallible, making the subsequent stalemate more complex.

The second negotiation occurred in 2019, prompted by a friend on the Board who urged a settlement. The homeowner offered $100. The Board countered with $250. The homeowner’s final offer was exquisitely specific: “$251.00, $250.00 to settle the outstanding fines and $1.00 to rent the clubhouse on a specific date.”

This offer was a tactical and psychological blunder. That extra dollar wasn’t about money; it was a message. Whether intended as a sarcastic jab or a principled stand to assert his rights as a member, it transformed a financial negotiation into a battle of wills. For a Board of Directors, accepting such an offer could be seen as capitulating to a petty gesture, setting a precedent that defiance works. They declined. Shortly after, the homeowner’s access to community facilities was cut off, leading to the legal petition he ultimately lost.

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Conclusion: A Lesson in Communication

This case serves as a powerful warning. The legal force of “constructive notice” makes you responsible for the mail you receive, not just the mail you read. The six-year standoff over a can of paint shows how inaction can have disproportionate consequences. And the failed $251 offer demonstrates that good-faith negotiation is paramount.

Ultimately, the homeowner was left still owing the money and locked out of his own amenities—a casualty of a battle he prolonged at every turn. It leaves every homeowner with a critical question to consider: in a dispute with your HOA, where is the line between standing on principle and causing yourself unnecessary harm?

Case Participants

Petitioner Side

  • Robert L Greco (petitioner)

Respondent Side

  • Nathan Tennyson (attorney)
    Brown|Olcott, PLLC
  • David Reid (board member)
    Testified for Respondent
  • Annette McCarthy (manager)
    Acting Manager; Testified for Respondent
  • Kelly Oetinger (attorney)
    Counsel for Respondent in 2013
  • Dennis Carson (board member)

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
  • Judy Lowe (Commissioner)
    ADRE