Tag Archives: 2020

Paul L Moffett v. Vistoso Community Association

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Case Summary

Case ID 20F-H2019014-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-27
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Paul L Moffett Counsel Richard M. Rollman
Respondent Vistoso Community Association Counsel Jason E. Smith

Alleged Violations

CC&Rs Article VII Membership and Voting section 7.3.1 Voting Classes

Outcome Summary

The ALJ dismissed the petition because the Petitioner failed to sustain the burden of proof that the Vistoso Community Association committed a violation of Article VII, Section 7.3.1 by allowing certain owners to vote. The ALJ reasoned that the specific restriction on voting for those paying reduced assessments was inapplicable in this case.

Why this result: The restriction on voting found in Section 7.3.1 applies only when the owner is paying a reduced assessment 'pursuant to Section 8.3.' Since the reduced assessment period permitted under Section 8.3 had expired for the developer owners, they were not paying reduced assessments 'pursuant to Section 8.3,' and were therefore entitled to vote.

Key Issues & Findings

Alleged violation of community document regarding the voting rights of Developer Owners paying reduced assessments.

Petitioner filed a Homeowners Association (HOA) Dispute Process Petition alleging the Respondent HOA violated the community documents (CC&Rs Article VII, Section 7.3.1) by allowing Developer Owners (Vistoso Highlands and Pulte) to vote in an election while they were paying reduced assessments, which Petitioner argued was prohibited.

Orders: Petitioner’s petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY

Analytics Highlights

Topics: HOA Election, Voting Rights, Reduced Assessment, Community Document Violation
Additional Citations:

  • A.R.S. § 32-2199
  • CC&Rs Article VII, Section 7.3.1
  • CC&Rs Article VIII, Section 8.3
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

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Video Overview

Audio Overview

Decision Documents

20F-H2019014-REL Decision – 766242.pdf

Uploaded 2026-04-24T11:23:35 (48.3 KB)

20F-H2019014-REL Decision – 766243.pdf

Uploaded 2026-04-24T11:23:39 (109.1 KB)

20F-H2019014-REL Decision – 766242.pdf

Uploaded 2026-01-23T17:30:28 (48.3 KB)

20F-H2019014-REL Decision – 766243.pdf

Uploaded 2026-01-23T17:30:31 (109.1 KB)

Administrative Hearing Briefing: Moffett vs. Vistoso Community Association (Case No. 20F-H2019014-REL)

Executive Summary

On January 27, 2020, Administrative Law Judge Tammy L. Eigenheer of the Arizona Office of Administrative Hearings dismissed a petition filed by Paul L. Moffett against the Vistoso Community Association. The core of the dispute was the validity of 207 votes cast by two developer-owners, Vistoso Highlands and Pulte, in a Board of Directors election held on March 29, 2019.

The petitioner argued that because these entities were paying reduced assessments on their lots, they were prohibited from voting under the community’s governing documents (CC&Rs). The respondent association contended that the voting prohibition was narrowly tied to a specific provision allowing reduced assessments for a limited time, a period which had long expired for both entities.

The judge ruled in favor of the Vistoso Community Association, concluding that the votes were valid. The decision hinged on a strict interpretation of the CC&Rs. Although the developers were factually paying reduced assessments, they were not doing so pursuant to the specific section that triggers the voting prohibition. The judge noted that the failure to collect full assessments was a separate “financial concern for the association,” but it did not invalidate the votes cast in the election. The petitioner failed to meet the burden of proof required to establish a violation of the community documents.

Case Overview

This briefing analyzes the Administrative Law Judge Decision in the matter between petitioner Paul L. Moffett and respondent Vistoso Community Association concerning an alleged violation of community CC&Rs.

Detail

Information

Case Name

Paul L Moffett vs. Vistoso Community Association

Case Number

20F-H2019014-REL

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Tammy L. Eigenheer

Petition Filed

On or about September 25, 2019

Hearing Date

December 16, 2019

Decision & Order Date

January 27, 2020

Petitioner

Paul L. Moffett

Petitioner’s Counsel

Richard M. Rollman, Gabroy, Rollman & Bosse, P.C.

Respondent

Vistoso Community Association

Respondent’s Counsel

Jason E. Smith, CARPENTER HAZLEWOOD DELGADO & WOOD, PLC

The Core Dispute: Voter Eligibility and Reduced Assessments

Petitioner’s Allegation

On September 25, 2019, Paul L. Moffett filed a petition with the Arizona Department of Real Estate, alleging that the Vistoso Community Association violated its own governing documents. The specific violation cited was of Article VII, Section 7.3.1 (Voting Classes) of the community’s Declaration.

The dispute centered on the Board of Directors election held on March 29, 2019. In the days leading up to the election, property management solicited votes from two developer-owners:

• Vistoso Highlands: Owner of 39 lots.

• Pulte: Owner of 168 lots.

Both entities cast their total available votes—207 votes—for three candidates: Sarah Nelson, Patrick Straney, and Dennis Ottley. Mr. Moffett’s petition argued that these 207 votes were invalid because, at the time of the election, both Vistoso Highlands and Pulte were paying reduced assessments on their lots, which he contended made them ineligible to vote under the CC&Rs.

Analysis of Arguments and Key Provisions

The decision in this case rested entirely on the interpretation of two interlinked sections within the Vistoso Community Association’s Declaration.

Key Governing Document Provisions

• Article VII, Section 7.3.1 (Voting Prohibition): This section states, in pertinent part, that “a Class A Member shall not be entitled to vote with respect to any Lots, Parcels or Apartment Units in regard to which the Owner is paying only a reduced Assessment pursuant to Section 8.3.”

• Article VIII, Section 8.3 (Reduced Assessment Eligibility): This section permits a Developer Owner to pay a reduced assessment on lots for a maximum of two years after the initial Developer Owner obtains ownership from the Declarant.

Petitioner’s Position (Paul L. Moffett)

The petitioner’s argument was straightforward:

• Vistoso Highlands and Pulte were paying reduced assessments.

• Section 7.3.1 prohibits voting for members who pay reduced assessments.

• Therefore, their votes should not have been counted.

Respondent’s Position (Vistoso Community Association)

The respondent’s argument focused on the precise qualifying language in the CC&Rs:

• The voting prohibition in Section 7.3.1 is conditional and applies only when members are paying reduced assessments specifically “pursuant to Section 8.3.”

• The eligibility window for paying reduced assessments under Section 8.3 had expired years prior for both entities.

• Therefore, although they were factually paying reduced assessments, this was not being done under the authority or conditions of Section 8.3.

• Consequently, the voting prohibition of Section 7.3.1 was not applicable to them.

Established Findings of Fact

The evidence presented at the hearing established a clear timeline regarding the ownership of the lots and the expiration of the reduced assessment periods.

• March 20, 2007: Vistoso Highlands obtained ownership of 39 lots from the Declarant.

• March 20, 2009: The two-year maximum period for Vistoso Highlands to pay reduced assessments under Section 8.3 officially terminated.

• August 21 & October 14, 2014: Pulte’s predecessor obtained ownership of 168 lots from the Declarant.

• October 14, 2016: The two-year maximum period for these 168 lots to have reduced assessments under Section 8.3 officially terminated.

• January 2, 2019: Pulte obtained ownership of the 168 lots from its predecessor.

• March 29, 2019: The Board of Directors election was held.

• Key Fact: The judge found that “For whatever reason, neither Vistoso Highlands nor Pulte had been paying the full assessment as required by the Declaration as of the date of the election.”

The Administrative Law Judge’s Decision and Rationale

The Administrative Law Judge (ALJ) sided with the respondent’s interpretation of the governing documents, leading to the dismissal of the petition.

Legal Interpretation

The ALJ concluded that the two articles could not be read in isolation. The critical legal finding was that the voting prohibition was explicitly and inextricably linked to the conditions set forth in Section 8.3.

The decision states:

“Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.”

The judge reasoned that since the eligibility period under Section 8.3 had expired in 2009 and 2016, respectively, the developers were no longer paying reduced fees “pursuant to” that section at the time of the 2019 election.

Acknowledgment of Financial Discrepancy

The ALJ acknowledged the underlying issue that the developers were not paying the full assessments they owed. However, this was deemed a separate matter from voter eligibility. The judge noted that the failure to be invoiced for and to pay the full amount “is certainly a financial concern for the association as a whole,” but “that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.”

Final Order

Based on this legal interpretation, the ALJ found that the petitioner, Paul L. Moffett, failed to sustain his burden of proof to establish a violation of the community documents by a preponderance of the evidence.

• Official Order: “IT IS ORDERED that Petitioner’s petition is dismissed.”

• Notice: The decision 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: Moffett v. Vistoso Community Association (Case No. 20F-H2019014-REL)

This guide provides a comprehensive review of the administrative law case between Petitioner Paul L. Moffett and Respondent Vistoso Community Association, based on the Administrative Law Judge Decision issued on January 27, 2020. It is designed to test and deepen understanding of the facts, legal arguments, and final ruling of the case.

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Short-Answer Quiz

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

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

2. What specific article and section of the community documents did the Petitioner allege was violated?

3. When was the Board of Directors election held, and what was the total number of votes cast by Pulte and Vistoso Highlands?

4. According to the community’s Declaration, under what specific condition is a Class A Member not entitled to vote?

5. What did Article VIII, Section 8.3 of the Declaration allow for, and what was the maximum time limit for this provision?

6. Based on the timeline provided, when should the reduced assessment period have ended for Vistoso Highlands and for Pulte?

7. What was the Petitioner’s core argument for why Pulte and Vistoso Highlands should not have been allowed to vote?

8. How did the Respondent counter the Petitioner’s argument regarding the voting rights of Pulte and Vistoso Highlands?

9. What was the Administrative Law Judge’s final conclusion regarding the voting eligibility of Vistoso Highlands and Pulte, and what was the reasoning?

10. What was the final order in this case, and what recourse was available to the parties after the decision?

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Answer Key

1. The primary parties were Paul L. Moffett, who served as the Petitioner, and the Vistoso Community Association, which was the Respondent. Moffett initiated the dispute by filing a petition against the association.

2. The Petitioner alleged a violation of “Article VII Membership and Voting, Section 7.3.1 Voting Classes” of the community documents (CC&Rs). This was the single issue presented for the hearing.

3. The Board of Directors election was held on or about March 29, 2019. In that election, Pulte and Vistoso Highlands collectively cast 207 votes for candidates Sarah Nelson, Patrick Straney, and Dennis Ottley.

4. According to Article VII, Section 7.3.1 of the Declaration, a Class A Member is not entitled to vote with respect to any lots for which the owner is paying only a reduced assessment “pursuant to Section 8.3.”

5. Article VIII, Section 8.3 of the Declaration allowed Developer Owners to pay a reduced assessment on lots purchased from the Declarant. This provision was permitted for a maximum period of two years (24 months) after the initial Developer Owner obtained ownership.

6. The reduced assessment period for Vistoso Highlands should have terminated on March 20, 2009. For the lots owned by Pulte, the reduced assessments should have terminated on October 14, 2016.

7. The Petitioner argued that because Vistoso Highlands and Pulte were, in fact, paying reduced assessments at the time of the election, they were not entitled to vote. The argument was based on the fact that they were paying reduced fees, regardless of whether they were supposed to be.

8. The Respondent argued that the voting prohibition in Section 7.3.1 was not applicable. Their reasoning was that while Pulte and Vistoso Highlands were paying reduced assessments, they were not doing so “pursuant to Section 8.3” because the time limit for that provision had long expired.

9. The Judge concluded that Vistoso Highlands and Pulte were entitled to vote in the election. The reasoning was that the prohibition in Section 7.3.1 only applied to reduced assessments paid as authorized by Section 8.3; since the authorization period had passed, the prohibition no longer applied, even if they were improperly paying a lower rate.

10. The final order was that the Petitioner’s petition was dismissed. After the order was served, the parties had 30 days to file a request for a rehearing with the Commissioner of the Department of Real Estate pursuant to A.R.S. § 41-1092.09.

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Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-style response. Use the source material to construct a thorough and well-supported argument.

1. Analyze the Administrative Law Judge’s interpretation of the phrase “pursuant to Section 8.3” from Article VII, Section 7.3.1. Explain how this interpretation was central to the case’s outcome and discuss the distinction made between paying a reduced assessment and paying a reduced assessment under the authority of Section 8.3.

2. Describe the timeline of property ownership and assessment obligations for both Vistoso Highlands and Pulte. Explain how the failure to adhere to the timeline for ending reduced assessments created the central conflict in this dispute.

3. Discuss the concept of “burden of proof” as it applied in this case. Who held the burden, what was the standard required (preponderance of the evidence), and why did the Administrative Law Judge ultimately find that the Petitioner failed to meet this burden?

4. The judge noted that the failure to collect full assessments from Vistoso Highlands and Pulte was a “financial concern for the association as a whole.” Elaborate on the potential implications of this financial issue for the Vistoso Community Association, even though it did not affect the outcome of the election dispute.

5. Outline the procedural history of the case, starting from the filing of the petition. Include key dates, the entities involved (Petitioner, Respondent, Department of Real Estate, Office of Administrative Hearings), the legal representatives, and the final step available to the parties after the judge’s order.

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Glossary of Key Terms and Entities

Term / Entity

Definition

Administrative Law Judge (ALJ)

An official, in this case Tammy L. Eigenheer, who presides over hearings at the Office of Administrative Hearings and makes decisions on disputes.

Arizona Department of Real Estate (Department)

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

Article VII, Section 7.3.1

The section of the Vistoso Community Association Declaration that prohibits a Class A Member from voting on lots for which they are paying a reduced assessment “pursuant to Section 8.3.”

Article VIII, Section 8.3

The section of the Declaration that permits a Developer Owner to pay a reduced assessment for a maximum of two years after purchasing a parcel from the Declarant.

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.

Declarant

The original entity that owned the land before selling lots to Developer Owners like Vistoso Highlands and Pulte’s predecessor.

Developer Owner

An owner, such as Vistoso Highlands or Pulte, who obtained lots from the Declarant and was eligible for reduced assessments for a limited time under Section 8.3.

Homeowners Association (HOA) Dispute Process Petition

The formal document filed by Paul L. Moffett with the Arizona Department of Real Estate on September 25, 2019, to initiate the legal dispute.

Office of Administrative Hearings (OAH)

The state office where the formal hearing for this case was conducted before an Administrative Law Judge.

Petitioner

The party who initiates a lawsuit or petition. In this case, Paul L. Moffett.

Preponderance of the Evidence

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

Respondent

The party against whom a petition is filed. In this case, the Vistoso Community Association.

The Legal Loophole That Flipped an HOA Election on Its Head

For anyone living in a planned community, the thick binder of Homeowners Association (HOA) rules is a familiar reality. These documents govern everything from mailbox colors to lawn maintenance, and their dense language can be a source of constant confusion. But beyond the day-to-day frustrations lies a deeper legal truth: the precise wording of these documents is absolute. This principle, known in contract law as strict constructionism, holds that a text’s literal meaning must be followed, even if it leads to an outcome that seems unfair.

This is the story of a homeowner who believed he had uncovered a clear-cut violation during a critical HOA election. Developers who were underpaying their dues had cast hundreds of votes, seemingly in direct contravention of the community’s own governing documents. But when the case was adjudicated, the outcome hinged on a single phrase, providing a textbook example of how strict constructionism can create a mind-bending loophole and turn a seemingly open-and-shut case completely upside down.

The Rule Seemed Simple: Pay a Discount, You Don’t Get a Vote

The petitioner, Paul L. Moffett, filed a formal complaint against the Vistoso Community Association, alleging a violation of a specific clause in the governing documents: “Article VII Membership and Voting, Section 7.3.1 Voting Classes.” His case was built on what appeared to be a straightforward set of rules designed to ensure fairness.

The community’s governing documents contained two key sections:

• Article VIII, Section 8.3: This rule allowed “Developer Owners” who purchased property from the original Declarant to pay a reduced assessment. However, this discount was explicitly limited to a maximum of two years.

• Article VII, Section 7.3.1: This rule stated that any member paying a reduced assessment pursuant to Section 8.3 was not entitled to vote with respect to those properties.

On the surface, the logic was simple and equitable: if you aren’t paying your full share as authorized by the rules, you don’t get a say in the community’s governance.

The Smoking Gun: Developers Were Underpaying for Years

The petitioner presented evidence that seemed to prove his case conclusively. Two developers, Vistoso Highlands and Pulte, owned a combined 207 lots. According to the two-year limit, their eligibility for reduced assessments should have ended long ago.

• Vistoso Highlands’ reduced assessment period should have terminated on March 20, 2009.

• Pulte’s predecessor’s reduced assessment period should have terminated on October 14, 2016.

However, at the time of the Board of Directors election on March 29, 2019, both developers were still paying the discounted rate—years after their eligibility had expired. Making matters worse, the evidence showed that in the days preceding the election, the property management staff had actively reached out to both developers to obtain their votes. They cast all 207 of them, which appeared to be a direct violation of the rule prohibiting voting by members paying reduced fees.

The Twist: A Single Phrase Created a Mind-Bending Loophole

This is where the case took a sharp, unexpected turn. The Administrative Law Judge (ALJ) assigned to the case did not focus on the fact that the developers were underpaying, but on the precise legal language connecting the two rules. The dispositive element of the case was the phrase “pursuant to Section 8.3.”

The ALJ noted that, “for whatever reason,” the developers had been underpaying for years. However, she reasoned that because the two-year time limit for reduced payments under Section 8.3 had long since expired, the developers were no longer paying their reduced fees “pursuant to Section 8.3.” They were, in fact, simply underpaying their dues improperly and in violation of the documents.

In essence, the developers’ long-term violation of the payment rule served as their shield against the voting penalty. By breaking the rule governing their assessment amount, they had inadvertently immunized themselves from the rule governing voting rights. The voting prohibition in Section 7.3.1 only applied to members who were correctly paying a reduced assessment as authorized by Section 8.3. Since their discount was no longer authorized, the voting ban no longer applied.

The ALJ summarized this stunning conclusion in the final decision:

Because Vistoso Highlands and Pulte were paying reduced assessments but not pursuant to Section 8.3, the prohibition on them voting found in Section 7.3.1. was not applicable to them.

The Verdict: A Financial Problem Doesn’t Invalidate a Vote

Ultimately, the petition was dismissed, and all 207 votes cast by the developers were deemed valid. The ALJ acknowledged that the developers’ failure to pay their full assessments was a serious financial issue for the association but clarified that it was a separate matter from their right to vote.

The ALJ effectively severed the financial issue from the question of voting eligibility. This separation of issues is a fundamental tenet of legal analysis, preventing one breach of contract (underpaying dues) from automatically triggering penalties associated with a completely different clause (voting rights).

While the failure to be invoiced and to pay a full assessment on the 207 parcels at issue is certainly a financial concern for the association as a whole, that does not necessitate a finding that Vistoso Highlands and Pulte were not entitled to cast votes in the election.

This highlights a critical aspect of legal interpretation: issues that seem causally linked in a common-sense way can be treated as entirely distinct under a strict reading of the law.

Conclusion: The Devil is Always in the Details

This case serves as a powerful reminder that in the world of legal documents, every single word matters. It is a perfect demonstration of strict constructionism, where an outcome that seems to defy logic and fairness can be perfectly valid based on the literal, unambiguous phrasing of a rule. What appeared to be a clear prohibition on voting was undone by a loophole created by the developers’ own long-term failure to comply with assessment rules.

The outcome forces us to confront a difficult question at the heart of our legal system: When the literal interpretation of a contract conflicts with our sense of fairness, which should prevail? This case provides a clear, if unsettling, answer.

Case Participants

Petitioner Side

  • Paul L Moffett (petitioner)
    Appeared at hearing and testified on his own behalf
  • Richard M. Rollman (petitioner attorney)
    Gabroy, Rollman & Bosse, P.C.
  • Alyssa Leverette (legal staff)
    Gabroy, Rollman & Bosse, P.C.
    Listed below Petitioner's attorney on service list

Respondent Side

  • Jason E. Smith (respondent attorney)
    CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
  • Kimberly Rubly (witness)
    Vice President of Southern Region (testified for Respondent)
  • Sean K. Moynihan (respondent attorney)
    CARPENTER HAZLEWOOD DELGADO & WOOD, PLC
    Recipient of Order

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Order
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Order
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Order
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Order
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Recipient of Order

Other Participants

  • Sarah Nelson (board member (elected))
    Vistoso Community Association
    Recipient of votes in disputed election
  • Patrick Straney (board member (elected))
    Vistoso Community Association
    Recipient of votes in disputed election
  • Dennis Ottley (board member (elected))
    Vistoso Community Association
    Recipient of votes in disputed election

Joan A. Tober, vs. Civano 1 Neighborhood 1 Homeowners Association

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

Case Summary

Case ID 19F-H1918042-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-15
Administrative Law Judge Kay A. Abramsohn
Outcome The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joan A. Tober Counsel —
Respondent Civano 1 Neighborhood 1 Homeowners Association Counsel Diana J. Elston

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded, both in the original decision and the rehearing, that the HOA was the prevailing party. The final decision affirmed that the HOA acted in compliance with A.R.S. § 33-1805(A) and (B), specifically ruling that privileged documents are exempt from disclosure timelines and that the Petitioner's request for 'all background information' was unreasonably broad and unclarified.

Why this result: Petitioner lost because she failed to meet the burden of proof that the HOA violated A.R.S. § 33-1805(A). The primary record sought was protected by attorney-client privilege, and her vague request for 'any and all documentation' made it impossible for the HOA to reasonably comply within the 10-day period.

Key Issues & Findings

HOA violation of requirement to provide association records within ten business days.

Petitioner alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide access to requested documents, including a privileged attorney letter and 'all background information', within the required 10-business day period. The rehearing focused specifically on the timeliness aspect.

Orders: The HOA was deemed the prevailing party in the rehearing, and Petitioner’s appeal was dismissed. The ALJ concluded the HOA acted in compliance with A.R.S. § 33-1805(A) and (B).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: Records Request, Attorney-Client Privilege, A.R.S. 33-1805, Planned Community, Rehearing, Unreasonably Broad Request, Timeliness of Disclosure
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)
  • A.R.S. § 32-2102
  • A.R.S. § 32-2199
  • A.R.S. § 32-2199.05
  • A.R.S. § 32-2199(2)
  • A.R.S. § 32-2199.01(D)
  • A.R.S. § 32-2199.02
  • A.R.S. § 41-1092
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Video Overview

Audio Overview

Decision Documents

19F-H1918042-REL-RHG Decision – 764197.pdf

Uploaded 2026-01-23T17:28:27 (187.4 KB)

19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/714863.pdf

Uploaded 2026-01-23T17:28:32 (51.7 KB)

19F-H1918042-REL-RHG Decision – ../19F-H1918042-REL/725808.pdf

Uploaded 2026-01-23T17:28:37 (89.7 KB)

Briefing Document: Tober v. Civano 1 Homeowners Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”

The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.

The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.

Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.

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Case Overview

This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).

Case Name

Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.

Case Number

19F-H1918042-REL

Adjudicating Body

Office of Administrative Hearings (OAH)

Administrative Law Judge

Kay A. Abramsohn

Core Issue

Alleged violation of A.R.S. § 33-1805, which governs member access to association records.

Initial Hearing Date

June 5, 2019

Initial Decision Date

July 29, 2019

Rehearing Date

December 11, 2019

Final Decision Date

January 15, 2020

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Key Parties and Individuals

• Petitioner: Joan A. Tober

◦ A homeowner in the Civano 1 Neighborhood since 2001.

◦ Previously worked for the company that developed the land/homes in the association area.

◦ Has served as a past Board member for the HOA.

◦ Served as an alternate member on the Finance Committee in 2018.

◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)

◦ The governing body for the planned community.

◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.

• Adjudicator: Kay Abramsohn

◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.

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Chronology of the Dispute

Nov 20, 2018

At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.

Nov 26, 2018

Petitioner sends her first email request for a copy of the Letter.

Nov 27, 2018

Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.

Nov 29, 2018

At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

Nov 29, 2018

At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.

Dec 13, 2018

Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”

Dec 26, 2018

Petitioner files her single-issue petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.

June 5, 2019

The initial administrative hearing is held.

July 29, 2019

Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.

Aug 5, 2019

Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.

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Core Dispute and Arguments

Petitioner’s Position (Joan A. Tober)

1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”

2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.

3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).

Respondent’s Position (Civano 1 HOA)

1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).

2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.

3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.

4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.

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Key Findings of Fact and Evidence

The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.

• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”

• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.

• Petitioner’s Request and Failure to Clarify:

◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.

◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”

◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”

◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.

• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.

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Legal Rulings and Conclusions of Law

Initial Decision (July 29, 2019)

• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.

• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”

• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.

Final Decision on Rehearing (January 15, 2020)

• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.

• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”

• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”

• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”

• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”

• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.

Study Guide: Tober v. Civano 1 Neighborhood 1 Homeowners Association

This study guide provides a comprehensive review of the administrative case No. 19F-H1918042-REL, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the case’s facts, legal arguments, and procedural history.

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Short Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, using only information provided in the source documents.

1. What specific event prompted Joan Tober to first request documents from the HOA in November 2018?

2. What was the HOA’s primary legal justification for refusing to provide a copy of “the Letter” to the Petitioner?

3. According to Arizona statute A.R.S. § 33-1805(A), what is the required timeframe for an HOA to make records available to a member after a written request?

4. What was the Petitioner’s core argument for why the HOA had forfeited its right to keep “the Letter” confidential?

5. On what grounds did the Petitioner file her request for a rehearing after the initial decision on July 29, 2019?

6. How did the Petitioner’s document request evolve between her first communication on November 26, 2018, and her third request on November 29, 2018?

7. What crucial step did the Administrative Law Judge conclude the Petitioner failed to take after the HOA’s email on November 29, 2018?

8. Besides “the Letter,” what other key documents related to the North Ridge wall did the Petitioner already possess when she filed her formal request?

9. Describe the Petitioner’s long-standing involvement and activities within the Civano 1 HOA community.

10. What was the final ruling in the Administrative Law Judge Decision on Rehearing, issued January 15, 2020?

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Answer Key

1. The request was prompted by the HOA Board meeting on November 20, 2018. At this meeting, the Board President mentioned receiving a letter from the HOA’s attorney regarding the North Ridge wall, stated its legal conclusion, and indicated, “I believe we can … send it out … so people can have it.”

2. The HOA’s primary justification was that the document was a privileged attorney-client communication. The HOA argued that the letter contained legal analysis and advice to the Board and was therefore exempt from disclosure under Arizona statute A.R.S. § 33-1805(B).

3. A.R.S. § 33-1805(A) states that a homeowners association has “ten business days” to fulfill a written request for examination of its financial and other records.

4. The Petitioner argued that the HOA had intentionally waived confidentiality. She contended that because the Board President mentioned the letter in an open meeting and the other Board members did not object, they showed unanimous consent to waive the attorney-client privilege.

5. The Petitioner requested a rehearing on the grounds that the initial Administrative Law Judge ruling “did not address the timeliness aspect of the law.” She argued that while the HOA eventually provided access to some records, it had not done so within the required 10-business day period.

6. The Petitioner’s request evolved from a specific ask for a copy of “the Letter” on November 26 and 27 to a much broader request on November 29. Her third request asked for “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

7. The Judge concluded that the Petitioner failed to respond to the HOA’s request for clarification in its November 29 email. The HOA had asked if she needed a copy of the “original engineer report,” and the Judge found no evidence in the hearing records that the Petitioner ever answered this question, thus preventing the HOA from being able to reasonably make records available.

8. The Petitioner already possessed the 2013 Engineering report and the 2014 report concerning erosion issues with the North Ridge wall. She acknowledged at the rehearing that she had obtained these from the city in 2014.

9. The Petitioner worked for the company that developed the land, purchased her home in 2001, and has been a past Board member. At the time of the dispute, she was an alternate member of the Finance Committee and had been taping and often transcribing every HOA meeting since 2008.

10. The final ruling was that the HOA was the prevailing party and had not violated A.R.S. § 33-1805. The Judge concluded the HOA was not required to provide the privileged letter and that its failure to provide other documents within 10 days was excused because the Petitioner’s request was “unreasonably broad” and she failed to clarify it. The Petitioner’s appeal was dismissed.

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Essay Questions

Instructions: The following questions are designed for a longer, essay-format response. No answers are provided.

1. Analyze the concept of “waiver” of attorney-client privilege as it was argued in this case. Discuss the Petitioner’s claim that the President’s public comments constituted a waiver and contrast this with the Administrative Law Judge’s implicit and explicit findings on the matter.

2. Trace the procedural history of this case, beginning with the initial petition filing on December 26, 2018, and concluding with the final notice of appeal rights in the January 15, 2020 order. Identify the key legal proceedings, decisions, and dates that marked the progression of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the court documents. Explain how the Administrative Law Judge applied this standard to the evidence presented by the Petitioner and why the Petitioner ultimately failed to meet her burden of proof in both the initial hearing and the rehearing.

4. Examine the role and interpretation of Arizona statute A.R.S. § 33-1805 in this dispute. How did the two key subsections, (A) and (B), create the central legal conflict between the Petitioner’s right to access records and the HOA’s right to withhold privileged information?

5. Evaluate the Administrative Law Judge’s reasoning that the Petitioner’s November 29, 2018 request was “unreasonably broad.” How did this determination, combined with the Petitioner’s alleged failure to clarify her request, become the deciding factor in the rehearing?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings and issues legal decisions and orders.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations in Arizona.

A.R.S. § 33-1805

The Arizona Revised Statute governing access to homeowners’ association records. Subsection (A) requires records be made “reasonably available” within ten business days, while subsection (B) allows for withholding of privileged attorney-client communications.

Attorney-Client Privilege

A legal concept that allows for certain communications between an attorney and their client (in this case, the HOA) to be kept confidential. The HOA cited this privilege as the reason for withholding “the Letter.”

Burden of Proof

The obligation of a party in a legal proceeding to prove their allegations. In this case, the Petitioner bore the burden of proving by a preponderance of the evidence that the HOA violated statutes or community documents.

Executive Session

A private meeting of a board of directors. “The Letter” had been discussed by the HOA Board in an executive session prior to the public meeting where it was mentioned.

An acronym for Homeowners Association. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

Office of Administrative Hearings (OAH)

The office with the legal authority to hear and decide contested cases involving disputes between homeowners and planned community associations in Arizona.

Petition

The formal, single-issue complaint filed by the Petitioner with the Department of Real Estate on December 26, 2018, which initiated the legal proceedings.

Petitioner

The party who files a petition initiating a legal action. In this case, the Petitioner is Joan A. Tober.

Preponderance of the Evidence

The standard of proof required in this proceeding. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” and “the greater weight of the evidence.”

Rehearing

A second hearing granted to re-examine a legal case after an initial decision has been made. A rehearing was granted in this case to address the Petitioner’s claim that the initial ruling did not consider the “timeliness aspect of the law.”

Respondent

The party against whom a petition is filed. In this case, the Respondent is the Civano 1 Neighborhood 1 Homeowners Association.

The Letter

The specific document at the heart of the dispute: a privileged legal opinion letter from the HOA’s attorneys to the Board regarding the North Ridge wall, which was “disclosed and discussed” at the November 20, 2018, Board meeting.

She Recorded Every HOA Meeting for a Decade and Still Lost. Here’s What Every Homeowner Can Learn.

Introduction: The Fight for Information

Many homeowners have felt the frustration of seeking information from their Homeowners Association (HOA), only to feel that the board is being less than transparent. It’s a common story that often ends in resignation. But for one Arizona homeowner, it ended in a formal administrative hearing.

This is the story of Joan A. Tober, a remarkably dedicated resident who filed a petition against her HOA with the Arizona Department of Real Estate over access to documents related to a retaining wall. She was a former board member, sat on the finance committee, and, most astoundingly, had personally recorded and often transcribed every single HOA meeting for over a decade. Yet, despite her exhaustive personal record-keeping, her petition was denied. The surprising and counter-intuitive lessons from her story offer a masterclass for any homeowner navigating a dispute with their association.

1. Takeaway #1: The “Attorney-Client Privilege” Shield is Stronger Than You Think.

The central conflict revolved around a single document: a letter from the HOA’s attorney. During an open board meeting, the Board President mentioned the letter, which concerned the association’s responsibility for a retaining wall, and created an expectation of transparency, stating: “I believe we can … send it out … so people can have it.”

Ms. Tober argued that by openly discussing the letter and offering to distribute it, the board had waived its confidentiality, and she was therefore entitled to a copy. It seems like a logical assumption. However, the Administrative Law Judge (ALJ) disagreed, pointing directly to the law. Under Arizona law (A.R.S. § 33-1805(B)), “privileged communication between an attorney for the association and the association” can be legally withheld from members.

The tribunal found that the mere mention of the letter in a public meeting—even with the president’s comment—did not break that legal privilege. This is a critical point for homeowners to understand. The law protects the board’s ability to seek and receive candid legal advice to govern the association effectively. While it may feel like a lack of transparency, this shield is a fundamental and legally protected aspect of HOA operations.

2. Takeaway #2: Asking for “Everything” Can Get You Nothing.

Beyond the privileged letter, the evolution and wording of Ms. Tober’s request became a major factor in the denial of her petition. The timeline shows how a homeowner’s frustration can lead to a fatal strategic error. On November 26 and 27, 2018, she made two specific requests for the attorney’s letter. The HOA responded that it was seeking clarification from its attorney.

After this delay, Ms. Tober’s third request, dated November 29, escalated significantly. She now asked for: “any and all documentation to include the letter that was disclosed and discussed… and all background information.”

In response, the HOA asked for clarification, but according to the hearing record, Ms. Tober could not provide evidence that she ever replied to narrow her request. This failure proved fatal. The Administrative Law Judge found the request to be “unreasonably broad.” The judge’s decision on the matter was blunt and serves as a powerful warning:

An association is not required to guess what records are being requested.

The ultimate reason for the denial synthesized both issues: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available.” This demonstrates that the legal burden falls squarely on the homeowner to articulate a request the association can reasonably fulfill. As the ALJ noted, an association is not required to be a mind reader.

3. Takeaway #3: Diligence Alone Doesn’t Guarantee a Win.

What makes this story so compelling is the extraordinary diligence of the petitioner. Joan Tober was not a casual observer. The hearing records establish her deep involvement in the community: she was a former Board member, a member of the Finance Committee, and had even worked for the company that originally developed the community.

But one fact, noted in the ALJ’s decision, highlights her stunning level of dedication:

Since 2008, Petitioner has taped every meeting and she often creates a transcript of the meetings.

Despite this decade of meticulous personal record-keeping and her clear passion for the issue, her petition was denied—not just once, but twice, on the initial hearing and again on the rehearing. This presents a sobering reality for all homeowners. While passion, engagement, and even a mountain of personal documentation are valuable, they cannot overcome fundamental legal principles. The outcome of a formal hearing is determined by the strength of the legal argument, not the volume of personal effort expended.

Conclusion: Strategy Over Sheer Effort

The petition of Joan A. Tober is a powerful reminder that when dealing with an HOA, effectiveness is not always measured by effort. Her story provides three critical takeaways for every homeowner: attorney-client privilege provides HOAs with a strong legal shield, record requests must be specific and targeted to be enforceable, and meticulous personal diligence must be paired with a sound legal strategy to succeed in a formal dispute.

This case leaves every homeowner with a critical question: when you have a dispute, are you channeling your energy into the most effective strategy, or simply into the most effort?

Case Participants

Petitioner Side

  • Joan A. Tober (petitioner)
    Former Board member; current Finance Committee member

Respondent Side

  • Diana J. Elston (HOA attorney)
    Jones, Skelton & Hochuli, P.L.C.
  • Mr. Mastrosimone (Board President)
    Civano 1 Neighborhood 1 Homeowners Association
    Testified at rehearing

Neutral Parties

  • Kay A. Abramsohn (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • c. serrano (Clerk)
  • Felicia Del Sol (Clerk)
  • LDettorre (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal
  • ncano (ADRE staff)
    Arizona Department of Real Estate
    Addressed in transmittal

Olga Carnahan v. White Mountain Lake Vistas

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Case Summary

Case ID 20F-H2019021-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-01-13
Administrative Law Judge Antara Nath Rivera
Outcome The Administrative Law Judge dismissed the petition, finding that the Respondent did not violate the CC&Rs. The specific article cited by the Petitioner (Article 12.3) governed amendments to the Declaration and Plat, not the purchase of real property, and therefore did not require a membership vote.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Olga Carnahan Counsel —
Respondent White Mountain Lake Vistas Counsel Edward O’Brien

Alleged Violations

Article 12.3

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Respondent did not violate the CC&Rs. The specific article cited by the Petitioner (Article 12.3) governed amendments to the Declaration and Plat, not the purchase of real property, and therefore did not require a membership vote.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the CC&Rs required a membership vote for the Board to purchase lots.

Key Issues & Findings

Purchase of lots without membership vote

Petitioner alleged the HOA Board violated CC&Rs by purchasing two lots without a membership vote. The Board argued Article 12.3 applies to amendments, not property purchases, and no vote was required.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Article 12.3

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Video Overview

Audio Overview

Decision Documents

20F-H2019021-REL Decision – 763430.pdf

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20F-H2019021-REL Decision – 763430.pdf

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Briefing: Carnahan vs. White Mountain Lake Vistas Administrative Decision

Executive Summary

On January 13, 2020, Administrative Law Judge Antara Nath Rivera issued a decision in the matter of Olga Carnahan vs. White Mountain Lake Vistas (No. 20F-H2019021-REL). The case centered on a dispute regarding the authority of a Homeowners Association (HOA) Board of Directors to purchase real property without a membership vote.

The Petitioner, Olga Carnahan, alleged that the Respondent, White Mountain Lake Vistas, violated Article 12.3 of the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by purchasing two lots (#54 and #65) without obtaining a two-thirds majority approval from the membership. The Respondent argued that the cited article applied specifically to amendments of the CC&Rs and Plats, not to the acquisition of property.

Following a hearing held on December 26, 2019, the Administrative Law Judge (ALJ) determined that the Petitioner failed to meet the burden of proof. The ALJ ruled that the CC&Rs did not require a membership vote for the purchase of the lots and that the Petitioner’s secondary concerns regarding financial impact were not ripe for adjudication. Consequently, the Petition was dismissed.

Case Overview

Key Information Details
Case Name Olga Carnahan vs. White Mountain Lake Vistas
Case Number 20F-H2019021-REL
Hearing Date December 26, 2019
Decision Date January 13, 2020
Presiding Judge Antara Nath Rivera
Primary Issue Alleged violation of CC&Rs Article 12.3 regarding property acquisition without a vote.
Verdict Petition Dismissed

Detailed Analysis of Key Themes

1. Interpretation of CC&Rs vs. Board Authority

The central conflict of the case was the interpretation of Article 12.3 of the CC&Rs. The Petitioner interpreted the requirement for a two-thirds membership vote for "Amendments" as a requirement for any major board action, including the purchase of lots. However, the Respondent testified—and the ALJ confirmed—that Article 12.3 specifically governs the process for amending the Declaration or the Plat. The Board maintained that their authority to purchase property to address drainage issues did not trigger the amendment requirements of Article 12.3.

2. Burden of Proof and Evidentiary Standards

In administrative hearings under A.R.S. § 32-2199, the Petitioner carries the burden of proof by a "preponderance of the evidence." This means the Petitioner must prove that their contention is "more probably true than not." The ALJ found that the Petitioner failed to provide evidence that any provision in the CC&Rs specifically authorized or required a membership vote for the purchase of property. Without a specific provision linking property acquisition to a membership vote, the Petitioner could not sustain her burden.

3. Procedural Ripeness and Financial Speculation

During the hearing, the Petitioner introduced a second argument: that the purchase of the lots would cause a future financial loss to the Association due to the loss of HOA fees from those lots. The ALJ designated this issue as "not ripe." Because the Respondent had not yet made definitive plans for the lots (such as merging them or making Plat changes) and the financial impact was speculative, it did not constitute an immediate violation of the community documents.

4. Board Transparency and Member Consent

The evidence showed that while the Board was not legally required to hold a vote, they did discuss the purchase at a September 20, 2019, meeting. The Board testified that members present agreed with the idea of purchasing the lots to address drainage issues. The dispute arose because the Petitioner requested a formal vote, which the Board denied based on their interpretation of the CC&Rs. This highlights the distinction between a Board seeking member opinion and a Board being legally bound by a membership vote.

Important Quotes and Context

On Article 12.3 (Amendments)

"This Declaration may be amended by the written approval or affirmative vote, or any combination thereof, of two-thirds (2/3) of the Membership." — CC&Rs Article 12.3.1

Context: This is the specific clause the Petitioner relied upon to argue that a vote was necessary for the lot purchase. The ALJ ultimately ruled that this clause applies only to formal amendments of the Declaration text.

On Administrative Authority to Amend

"The Board may amend this Declaration or the Plat, without obtaining the approval or consent of any Owner… in order to conform this Declaration or the Plat to the requirements or guidelines of [federal, state, or local agencies]." — CC&Rs Article 12.3.2

Context: This section outlines specific instances where the Board can act even without the two-thirds vote mentioned in 12.3.1, demonstrating that the Board has broad powers regarding the Plat under certain conditions.

On the Burden of Proof

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." — Findings of Fact, quoting Morris K. Udall, Arizona Law of Evidence

Context: This legal standard was used to evaluate whether Olga Carnahan had provided enough evidence to show the HOA violated its rules. The ALJ concluded she had not.

On the Final Ruling

"Petitioner failed to establish by a preponderance of the evidence that Respondent lacked the authority to purchase the lots without a vote. Thus, Petitioner failed to sustain her burden to establish that Respondent violated Article 12.3 of the CC&Rs." — Conclusion of Law #8

Context: This is the ALJ's final determination, leading directly to the dismissal of the petition.

Actionable Insights

For Homeowners Association Boards
  • Clarify Governing Document Scope: Ensure that the distinction between "Board Actions" (e.g., purchasing property for maintenance/drainage) and "Amendments to Declarations" is clearly communicated to members to prevent litigation.
  • Documentation of Intent: The Respondent’s ability to point to specific reasons for the purchase (drainage issues) and the lack of any formal Plat changes helped demonstrate that they were not circumventing Article 12.3.
  • Meeting Minutes as Evidence: The Respondent successfully used meeting minutes (Exhibits #6 and #7) to show that they had consulted with members, even if a formal vote was not legally required.
For Members/Petitioners
  • Verify Specificity of Allegations: Before filing a petition under A.R.S. § 32-2199, a member should ensure the specific Article cited actually governs the action in question. In this case, citing an "Amendment" clause for a "Purchase" action led to dismissal.
  • Understand Ripeness: Legal challenges must be based on current violations rather than fears of future financial loss. Arguments regarding "future" adverse effects on finances are likely to be dismissed as not ripe.
  • Evidentiary Requirements: Petitioners must provide more than testimony; they must provide community documents that explicitly mandate the procedure they claim was bypassed.

Case Study Guide: Olga Carnahan vs. White Mountain Lake Vistas

This study guide provides a comprehensive overview of the administrative hearing between Olga Carnahan and the White Mountain Lake Vistas Homeowners Association. It explores the legal interpretations of community documents, the evidentiary standards in administrative hearings, and the specific application of Arizona Revised Statutes regarding planned community disputes.

1. Case Overview and Core Themes

The central conflict in this case involves a homeowner (Petitioner) alleging that the Board of Directors of White Mountain Lake Vistas (Respondent) violated the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by purchasing real property without a membership vote.

Key Themes:
  • Board Authority vs. Membership Approval: The distinction between actions requiring a supermajority vote and those within the Board's discretionary power.
  • Interpretation of CC&Rs: The legal necessity of applying specific articles to relevant actions (e.g., distinguishing between "amending a declaration" and "purchasing property").
  • Evidentiary Burdens: The requirement for a Petitioner to prove a violation by a preponderance of the evidence in an administrative setting.
  • Ripeness of Claims: Determining whether a violation has actually occurred or if the claim is based on future, speculative harm.

2. Fact Summary and Timeline

Date Event
June 30, 2017 Petitioner purchases lot #43 within the community.
July 2, 2019 CC&Rs are amended by a 2/3 membership vote per Article 12.3.
Sept 20, 2019 Board meeting held; drainage issues regarding lots #54 and #65 are discussed. Board indicates intent to purchase the lots.
Oct 11, 2019 Petitioner learns of the sale of lots #54 and #65 to the Respondent.
Oct 14, 2019 Petitioner files a Dispute Process Petition with the Arizona Department of Real Estate.
Nov 20, 2019 Department of Real Estate issues a Notice of Hearing.
Dec 26, 2019 Administrative hearing held before Judge Antara Nath Rivera.
Jan 13, 2020 Administrative Law Judge issues the decision to dismiss the Petition.

3. Analysis of Article 12.3 (Amendments)

The Petitioner’s case relied primarily on Article 12.3 of the CC&Rs. The following table breaks down the relevant subsections and their legal applications as determined during the hearing:

Subsection Provision Details Application in Case
12.3.1 The Declaration may be amended by written approval or affirmative vote of 2/3 of the Membership. The Judge ruled this applies only to amendments to the CC&Rs, not the purchase of property.
12.3.2 The Board may amend the Declaration or the Plat without Owner consent to conform to federal/state/local guidelines (FHA, VA, etc.). This grants the Board unilateral power to amend Plats in specific regulatory contexts.
12.3.3 Approved amendments must be signed by the President/VP and recorded with the County Recorder. Procedural requirement for valid amendments; did not apply as no amendment occurred.

4. Short-Answer Practice Questions

Q1: What was the primary legal issue raised by the Petitioner?

  • Answer: The Petitioner alleged that the Respondent violated Article 12.3 of the CC&Rs by purchasing two lots (#54 and #65) without obtaining a 2/3 majority vote from the membership.

Q2: How did the Respondent justify the purchase of lots #54 and #65?

  • Answer: The Board testified that the lots were purchased to address drainage issues affecting the community. They further argued that the CC&Rs contained no provision requiring a membership vote for the purchase of property.

Q3: What standard of proof was required for the Petitioner to win the case?

  • Answer: The Petitioner was required to establish the violation by a "preponderance of the evidence," meaning she had to prove the contention was more probably true than not.

Q4: Why did the Administrative Law Judge deem the Petitioner's secondary argument regarding financial loss as "not ripe"?

  • Answer: The Petitioner argued the purchase would cause future financial loss due to missing HOA fees. The Judge found this did not establish an immediate violation and therefore was not yet a justiciable issue for the hearing.

Q5: Who bears the burden of proof regarding affirmative defenses in this administrative hearing?

  • Answer: The Respondent bears the burden to establish affirmative defenses by a preponderance of the evidence.

5. Essay Prompts for Deeper Exploration

  1. The Limits of Homeowner Oversight: Analyze the tension between homeowner expectations and the Board's operational authority. In the context of Carnahan vs. White Mountain Lake Vistas, discuss why the Petitioner's expectation of a vote was legally unsupported despite her presence at the meeting where the idea was discussed.
  2. Statutory Interpretation of CC&Rs: Critique the Petitioner’s application of Article 12.3. Explain the legal distinction between "amending a community document" and "executing a real estate transaction," and discuss how specific language in CC&Rs limits or expands Board power.
  3. Administrative Law and the Preponderance of Evidence: Evaluate the role of the Office of Administrative Hearings in HOA disputes. How does the standard of "preponderance of the evidence" differ from "beyond a reasonable doubt," and why is this lower threshold appropriate for civil disputes involving planned communities?

6. Glossary of Important Terms

  • A.R.S. § 32-2199 et seq: The Arizona Revised Statutes that permit an owner or planned community organization to file a petition for a hearing concerning violations of community documents.
  • Affirmative Defense: A fact or set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent's otherwise unlawful conduct.
  • CC&Rs (Covenants, Conditions, and Restrictions): The declaration that sets forth the rules, regulations, and requirements for a planned community.
  • Department (Arizona Department of Real Estate): The state agency responsible for overseeing HOA dispute petitions before they are sent to the Office of Administrative Hearings.
  • Plat: A map or plan of a piece of land showing how it has been subdivided into lots.
  • Preponderance of the Evidence: Evidence that has the most convincing force; proof that a contention is more probably true than not.
  • Ripeness: A legal doctrine used to determine if a case is ready for adjudication. A claim is not "ripe" if it is based on speculative future events rather than an actual, immediate violation.
  • Special Warranty Deed: A deed in which the seller warrants only against defects in the title that occurred during their period of ownership.

HOA Authority vs. Homeowner Rights: Lessons from the White Mountain Lake Vistas Dispute

1. Introduction: The Power Struggle in Planned Communities

In the realm of common-interest developments, a perpetual tension exists between the authority of the Board of Directors and the expectations of the membership. This friction often intensifies when a Board exercises its power to manage community assets or expend association funds. Homeowners frequently view significant acquisitions through the lens of a democratic vote, while Boards often operate under the mandate of their corporate powers.

The case of Olga Carnahan vs. White Mountain Lake Vistas (No. 20F-H2019021-REL) serves as a quintessential study in this jurisdictional tug-of-war. The dispute centers on a fundamental question of HOA governance: Does a Board of Directors possess the unilateral authority to purchase real property, or does such an acquisition constitute an amendment to the community’s governing documents requiring a membership vote?

2. The Dispute: The Purchase of Lots #54 and #65

The conflict arose when Olga Carnahan, an owner of lot #43 who was not a member of the Board during her tenure in the community, challenged the Association’s purchase of two vacant lots, specifically lots #54 and #65. In October 2019, Carnahan filed a petition with the Arizona Department of Real Estate, alleging that the Board had bypassed the procedural requirements set forth in Article 12.3 of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs).

Carnahan’s petition was built on two primary grievances:

  • Lack of Membership Consent: She asserted that the Board was legally obligated to obtain a majority or two-thirds vote from the homeowners before acquiring new land, arguing that such a significant action should be a community-wide decision.
  • Financial Erosion: Beyond the procedural challenge, the Petitioner raised concerns regarding the fiscal impact on the Association. She argued that the purchase resulted in an immediate loss of revenue, as the HOA would no longer collect assessments from these previously privately owned, fee-paying lots.
3. The Defense: Solving Drainage Issues

The Respondent Board, represented by Secretary/Treasurer Rose Thomas and President Joyce Dick, justified the purchase as an exercise of their duty to maintain the community's infrastructure. The acquisition was not intended as a speculative real estate venture but as a strategic solution to chronic drainage issues affecting those specific lots and the surrounding area.

The Board testified that the matter was discussed transparently during a meeting on September 20, 2019. While Petitioner Carnahan was present at this meeting and expressed support for the drainage solution, she insisted on a formal membership vote. The Board, however, maintained that the CC&Rs granted them the authority to act independently. After gauging the general support of the members in attendance, the Board voted unanimously to proceed with the purchase. Notably, while the Petitioner alleged that a vote was supposed to occur at a subsequent meeting on October 11, 2019, the evidence showed she was not present at that meeting, leaving her testimony regarding those specific proceedings without firsthand weight.

4. Legal Deep Dive: Decoding CC&Rs Article 12.3

The resolution of this dispute required a precise interpretation of Article 12.3. As a legal analyst, it is vital to distinguish between a Board's Business Power (the authority to manage assets) and the Contractual Framework (the CC&Rs and Plats that define the community).

Provision Scope of Authority
Subsection 12.3.1 The Declaration may be amended only with the written approval or affirmative vote of two-thirds (2/3) of the Membership.
Subsection 12.3.2 The Board may amend the Declaration or the Plat without owner or First Mortgagee consent to conform to requirements of federal agencies (FNMA, FHLMC, FHA, VA) or any federal, state, or local government agencies.

Analysis of Authority Administrative Law Judge (ALJ) Antara Nath Rivera’s decision hinged on the fact that Article 12.3 governs "Amendments"—changes to the written text of the Declaration or the physical descriptions in the Plat. The act of purchasing property is a corporate transaction, not a textual amendment to the community's servitudes. Because the lots remained vacant and no changes had been recorded to the Plat, the 2/3 vote requirement for amendments was never triggered. In the world of community associations, Boards generally have the power to manage corporate assets without seeking "shareholder" approval for every transaction unless the governing documents explicitly state otherwise.

5. The Verdict: Why the Petition Failed

The ALJ dismissed the petition, citing several critical legal and procedural deficiencies:

  • Preponderance of the Evidence: The burden of proof lay with the Petitioner to show that a violation occurred. Carnahan failed to identify any provision in the CC&Rs that specifically required a membership vote for property acquisition. Furthermore, her absence from the October 11 meeting weakened her evidentiary standing regarding alleged Board commitments.
  • Ripeness and Injury: The judge found the petition was "not ripe." Because the Board had not yet filed a Plat change or amended the Declaration, there was no "action" to adjudicate. The lots remained vacant, and the Board was still merely researching options for conversion or merging.
  • Procedural Scope: During the hearing, the Petitioner attempted to introduce a second issue regarding future financial impacts. The ALJ noted that this was a "single issue petition" and that the financial argument did not establish an immediate violation of the governing documents.

The final order was definitive: "IT IS ORDERED that the Petition be dismissed."

6. Compelling Takeaways for Homeowners and Boards

The White Mountain Lake Vistas case offers three critical lessons for the governance of planned communities:

  1. Know Your Definitions (Business Power vs. Contractual Framework): A property purchase is typically an exercise of Board Business Power—the authority to manage the association’s assets and common areas. An amendment, conversely, is a change to the community’s Contractual Framework. Unless the CC&Rs specifically restrict the Board’s power to acquire land, the amendment procedures do not apply to simple real estate transactions.
  2. The Burden of Proof: In administrative disputes, the homeowner bears the responsibility to prove a violation by a preponderance of the evidence. Subjective feelings of unfairness or the belief that a vote "should" happen are insufficient to overcome the legal authority granted to the Board by the governing documents.
  3. Read the Meeting Minutes and Attend: Documentation is the bedrock of HOA law. The September 20 meeting minutes proved that the Board had communicated its intent and gathered feedback. Owners who fail to attend meetings or review minutes may find themselves filing "premature" legal challenges based on a misunderstanding of Board actions and authority.
7. Conclusion: The Importance of Governing Documents

The Carnahan case reaffirms that the CC&Rs and Plats are the "constitution" of the HOA. They serve as the final authority in any dispute, defining the boundaries of Board power and owner rights. While homeowners may have valid concerns about community finances or transparency, those concerns must be anchored in the specific language of the Declaration to have legal standing. Clear, proactive communication between Boards and owners—particularly regarding complex issues like drainage and land acquisition—remains the best defense against costly and ultimately unsuccessful litigation.

Case Participants

Petitioner Side

  • Olga Carnahan (Petitioner)
    Appeared on her own behalf

Respondent Side

  • Edward O’Brien (Respondent Attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Appeared on behalf of White Mountain Lake Vistas
  • Rose Thomas (Board Secretary/Treasurer)
    White Mountain Lake Vistas Board
    Witness
  • Joyce Dick (Board President)
    White Mountain Lake Vistas Board
    Witness

Neutral Parties

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

Myron H Colvin v. Tierra Del Sol RV Resort 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-H1919064-REL
Agency —
Tribunal —
Decision Date 2020-01-09
Administrative Law Judge —
Outcome Petition dismissed
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Myron H. Colvin Counsel Pro se
Respondent Tierra Del Sol RV Resort Association Counsel Nicholas Nogami, Esq. and Lydia A. Peirce Linsmeier

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

19F-H1919064-REL-RHG Decision – 763086.pdf

Uploaded 2026-04-24T11:20:53 (86.2 KB)

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

Executive Summary

This briefing document analyzes the administrative law decision in the matter of Myron H. Colvin v. Tierra Del Sol RV Resort Association (Case No. 19F-H19190064-REL-RHG). The case centered on a dispute regarding the installation of concrete pavers within a lot setback area and the interpretation of the association's Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner, Myron H. Colvin, alleged that the Tierra Del Sol RV Resort Association violated its own CC&Rs by issuing him a notice of violation. Following a rehearing on December 20, 2019, Administrative Law Judge Velva Moses-Thompson determined that the Petitioner failed to meet the burden of proof required to establish a violation by the Association. Furthermore, the judge ruled that the Office of Administrative Hearings (OAH) lacked the jurisdiction to issue a declaratory judgment regarding the Petitioner’s alleged violation. The petition was dismissed in its entirety.

Procedural History and Case Context

The dispute progressed through several administrative stages before reaching a final decision:

  • Initial Petition: On September 12, 2018, Mr. Colvin filed a petition with the Arizona Department of Real Estate alleging a violation of Section 4.3 of the CC&Rs.
  • Request for Hearing: On May 16, 2019, Mr. Colvin requested a hearing before the full Board of Directors concerning his alleged violation.
  • Original Hearing: The first hearing was conducted on August 7, 2019. Following the decision, Mr. Colvin requested a rehearing.
  • Rehearing: The Department of Real Estate set the matter for rehearing on December 20, 2019, at the OAH in Phoenix, Arizona.

Key Themes and Analysis

Interpretation of CC&R Section 4.3 (Lot Setbacks)

The core of the dispute involved the physical requirements for improvements within lot setbacks. Section 4.3 of the CC&Rs establishes specific setback areas:

  • Front: 5 feet
  • Sides: 3 feet
  • Rear: 3 feet

The provision prohibits permanent or temporary structures and improvements in these areas, with the exception of landscaping. However, landscaping is only permitted if it consists of "features which can be moved by one person unassisted by mechanical devices."

The Association issued a violation notice because Mr. Colvin’s installed pavers were not small enough to be removed by a single person without mechanical assistance. The Association suggested a remedy of cutting the concrete into small 100-pound sections.

Burden of Proof and Legal Standards

The decision highlights the evidentiary requirements in administrative hearings:

  • Preponderance of the Evidence: The Petitioner carries the burden of proving that the Respondent violated the CC&Rs by a "preponderance of the evidence." This is defined as evidence that is "more probably true than not" or possesses the "most convincing force."
  • Petitioner's Failure to Allegue: The judge noted a fundamental flaw in the Petitioner's argument: Mr. Colvin did not allege that the Association had placed a structure or improvement in the setback. Rather, he used the petition to argue that his own actions did not constitute a violation.
Jurisdictional Boundaries

A critical theme in the decision is the limitation of the OAH’s authority. The judge clarified that the tribunal’s role is to hear petitions concerning violations of planned community documents under A.R.S. § 32-2199(B). The tribunal does not have the jurisdiction to issue a "declaratory judgment"—a legal determination of a party's rights or status—regarding whether a homeowner's specific actions violated the CC&Rs.

Important Quotes and Context

Quote Context
"Each Lot shall be subject to a setback area… in no event shall any… Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback." Source: CC&R Section 4.3. This quote defines the specific physical constraints that led to the violation notice against the Petitioner.
"Mr. Colvin did not even allege that Tierra Del Sol placed a structure, vehicle, or landscaping in the setback of a Lot. Mr. Colvin asserted that he did not violate Section 4.3 of the CC&Rs." Source: Conclusions of Law ¶ 4. This highlights the disconnect between the Petitioner's claim and the legal requirements for a successful petition against an association.
"To the extent that Mr. Colvin is requesting a declaratory judgment regarding his alleged violation, this tribunal does not have jurisdiction to make such a determination." Source: Conclusions of Law ¶ 5. This confirms the procedural limitation that the OAH cannot rule on a petitioner's "innocence" regarding a violation notice.
"A preponderance of the evidence is… evidence that has the most convincing force; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Source: Conclusions of Law ¶ 3. This provides the legal standard used to evaluate the evidence presented during the hearing.

Actionable Insights

For Property Owners
  • Understand Petition Requirements: When filing a petition against a Homeowners Association (HOA), the owner must provide evidence that the Association violated a specific provision of the community documents.
  • Clarify "Moveable" Standards: Before installing landscaping in setback areas, owners should verify that the materials meet the "one person, unassisted" rule to avoid mechanical device requirements and subsequent violations.
  • Jurisdictional Awareness: Owners should be aware that the OAH is a venue for addressing association violations, not necessarily a venue for obtaining a declaration that they are in compliance with rules after receiving a violation notice.
For Community Associations
  • Consistent Enforcement: The Association’s enforcement of Section 4.3 was based on a specific, measurable standard (size/weight of pavers and the need for mechanical assistance). Maintaining such clear standards aids in defending enforcement actions.
  • Remediation Options: Providing specific methods for compliance (e.g., "cutting the concrete… into small 100 pound sections") can be a useful component of a violation notice.
  • Jurisdictional Defense: In administrative hearings, associations can successfully argue for dismissal if the petitioner seeks a remedy (like a declaratory judgment) that the tribunal is not authorized to provide.

Case Analysis: Colvin v. Tierra Del Sol RV Resort Association (No. 19F-H19190064-REL-RHG)

This study guide provides a comprehensive overview of the administrative law proceedings regarding a dispute between a property owner and a homeowners association. It focuses on the interpretation of Covenants, Conditions, and Restrictions (CC&Rs), the burden of proof in administrative hearings, and the jurisdictional limits of the Office of Administrative Hearings (OAH).

Key Concepts and Case Summary

Case Background

The case involves a dispute between Myron H. Colvin (Petitioner) and Tierra Del Sol RV Resort Association (Respondent). Mr. Colvin, a property owner within the resort, filed a petition alleging that the Association violated Section 4.3 of its own CC&Rs.

The conflict originated from Mr. Colvin’s installation of concrete pavers in the setback area of his lot. While the Association initially approved the request, it later issued a Notice of Violation on May 8, 2019. The Association contended that the installed pavers were too large to be moved by one person without mechanical assistance, thus violating the specific mobility requirements for improvements in setback areas.

Legal Provisions: CC&R Section 4.3 (Lot Setbacks)

Section 4.3 of the Tierra Del Sol CC&Rs defines the physical boundaries and restrictions for lot setbacks:

Setback Location Required Distance
Front Five (5) feet
Sides Three (3) feet
Rear Three (3) feet

Core Restrictions within Setbacks:

  • Prohibited Items: No permanent or temporary structures, improvements (except landscaping), vehicles (except golf carts and car dollies), or Park Models/RVs may be located in these areas.
  • The "One-Person" Rule: Any improvement or landscaping feature in the setback must be capable of being moved by one person unassisted by mechanical devices.
  • Encroachment: No structure, slide-out, or improvement may encroach on or overhang the designated setback area unless it meets the mobility criteria.
The Burden of Proof and Legal Standards

Under Arizona law, specific standards of evidence apply to administrative hearings:

  • Petitioner's Burden: The Petitioner (Colvin) bears the burden of proof to establish that the Respondent (Association) violated the CC&Rs.
  • Respondent's Burden: The Respondent bears the burden of establishing any affirmative defenses.
  • Standard of Evidence: Both parties must prove their claims by a preponderance of the evidence.

Defining "Preponderance of the Evidence": As cited in the decision via Black’s Law Dictionary and Udall on Evidence, this standard means:

  1. The contention is "more probably true than not."
  2. Evidence that possesses the "most convincing force" and "superior evidentiary weight."
  3. It does not require the total absence of reasonable doubt, but rather enough evidence to incline an impartial mind toward one side of the issue.
Jurisdictional and Interpretive Rulings

The Administrative Law Judge (ALJ) reached two primary legal conclusions:

  1. Restrictive Covenant Interpretation: In Arizona, unambiguous covenants are enforced to give effect to the intent of the parties and must be construed as a whole.
  2. Lack of Jurisdiction for Declaratory Judgments: The OAH has the authority to hear petitions regarding violations of community documents under A.R.S. § 32-2199(B). However, the tribunal determined it does not have the jurisdiction to issue a declaratory judgment regarding whether a specific owner's actions constitute a violation; its focus is on whether the Association violated the documents.

Short-Answer Practice Questions

1. What was the primary allegation made by Myron H. Colvin in his petition? Answer: Colvin alleged that the Tierra Del Sol RV Resort Association violated Section 4.3 of its CC&Rs.

2. According to CC&R Section 4.3, what is the weight/size limit for landscaping features in a setback? Answer: There is no specific weight listed in the CC&R text, but the feature must be able to be moved by one person unassisted by mechanical devices. (Note: The Association suggested cutting concrete into 100-pound sections to meet this intent).

3. What are the specific dimensions of the setbacks for the front, sides, and rear of a lot? Answer: Front: 5 feet; Sides: 3 feet; Rear: 3 feet.

4. Why did the Administrative Law Judge dismiss Mr. Colvin’s petition? Answer: The Petitioner failed to establish that the Association violated Section 4.3. Furthermore, the tribunal ruled it lacked jurisdiction to provide a declaratory judgment on whether Colvin himself was in violation.

5. Which Arizona Revised Statute permits an owner to file a petition regarding violations of planned community documents? Answer: A.R.S. § 32-2199(B).

Essay Prompts for Deeper Exploration

  1. The Nature of Association Violations: The Association argued that Section 4.3 can only be violated if an entity places an unapproved object in a setback. Analyze the distinction between an Association failing to enforce a rule and an Association "violating" a rule. Based on the Source Context, why was Colvin’s argument fundamentally misaligned with the tribunal's jurisdictional scope?
  1. Interpreting "Unambiguous" Covenants: The decision notes that restrictive covenants must be construed as a whole to give effect to the intent of the parties. Discuss the potential challenges in interpreting the phrase "moved by one person unassisted by mechanical devices." How does such a subjective standard complicate enforcement for both homeowners and Boards of Directors?
  1. The Standard of Evidence in Administrative Law: Compare and contrast "preponderance of the evidence" with other legal standards (such as "beyond a reasonable doubt"). Using the definitions provided in the text, explain why the ALJ found that Colvin failed to meet this standard in his claim against the Association.

Glossary of Important Terms

  • Administrative Law Judge (ALJ): A judge who moves to resolve disputes between government agencies and people or between private parties under the authority of statutory law.
  • A.R.S. § 32-2199(B): The Arizona Revised Statute that grants the Department of Real Estate the authority to hear disputes regarding planned community violations.
  • CC&Rs (Covenants, Conditions, and Restrictions): The legal documents that lay out the rules for a planned community or homeowners association.
  • Declaratory Judgment: A binding adjudication that establishes the rights or legal status of the parties without necessarily awarding damages or ordering specific action.
  • Mechanical Device: In the context of CC&R 4.3, any tool or machine (such as a forklift or hoist) used to assist in moving objects that a person cannot move alone.
  • OAH (Office of Administrative Hearings): The agency responsible for conducting independent administrative hearings for the state.
  • Petitioner: The party who presents a petition to a court or tribunal (in this case, Myron H. Colvin).
  • Preponderance of the Evidence: The evidentiary standard where the proof shows that a fact is more likely to be true than not.
  • Respondent: The party against whom a petition is filed (in this case, Tierra Del Sol RV Resort Association).
  • Setback: The minimum distance which a building or other structure must be set back from a street, road, or lot boundary.

When Landscaping Leads to Legal Limbo: Lessons from the Tierra Del Sol RV Resort Dispute

1. Introduction: The High Cost of a Three-Foot Setback

What begins as a minor aesthetic modification can swiftly evolve into a protracted legal battle within the Office of Administrative Hearings (OAH). For Myron H. Colvin, a homeowner at the Tierra Del Sol RV Resort, the installation of concrete pavers triggered a dispute that spanned nearly a year and a half, beginning with a petition filing on September 12, 2018, and concluding only after a formal rehearing in early 2020.

The conflict centered on an alleged violation of Section 4.3 of the community’s Covenants, Conditions, and Restrictions (CC&Rs). This case highlights the precarious nature of property setbacks—specifically, how a three-foot strip of land can dictate the technical specifications of landscaping materials and the procedural hurdles a homeowner must clear when challenging an Association’s enforcement actions.

2. The Rule: Understanding CC&R Section 4.3

The governing documents of Tierra Del Sol RV Resort Association establish rigid "setback areas" intended to maintain safety and utility access between lots. Section 4.3 governs the placement of all structures, vehicles, and improvements within these zones.

CC&R § 4.3 Lot Setbacks: Restrictions "Each Lot shall be subject to a setback area across the front five (5) feet, on both sides three (3) feet, and the rear three (3) feet of each Lot. No permanent or temporary structures, improvements (other than landscaping), vehicles (other than golf carts and car dollies), Park Models or Recreational Vehicles shall be located within such setback area. A Recreational Vehicle, Park Model, Arizona Room, awning, shed, or any other permitted structure must be located on a Lot in compliance with setback requirements and rules of the Board, and in no event shall any Recreational Vehicle, its slide-out, or any Improvement, other than landscaping features which can be moved by one person unassisted by mechanical devices, encroach on or overhang any area designated in this Declaration as a lot setback."

Under this provision, the Association enforces three distinct setback requirements:

  • Front: 5 feet
  • Sides: 3 feet
  • Rear: 3 feet

As a specialist, it is vital to note that Section 4.3 applies the same "manual movability" standard to pavers as it does to "Arizona Rooms" and "Recreational Vehicle slide-outs." The core requirement is the "one-person" rule: any improvement in these areas must be capable of being moved by a single individual without mechanical assistance. This ensures that the Association or utility providers can clear the setback area quickly if emergency access to underground lines or property boundaries is required.

3. The Conflict: Pavers, Permits, and "Mechanical Devices"

While the Association initially granted approval for Mr. Colvin to install concrete pavers, the Association initiated formal enforcement proceedings following the actual installation. On May 8, 2019, the Association issued a Notice of Violation, asserting that the installed pavers were too large and heavy to comply with the "unassisted" movement requirement of CC&R § 4.3.

To resolve the non-compliance, the Board offered a compromise designed to bring the improvement within the "one-person" rule:

  • Complete removal of the concrete pavers from the setback areas; or
  • Sectioning the material: Cutting the concrete within the three-foot setback into small, 100-pound sections that a single person could theoretically move.

Mr. Colvin contested the violation, mounting a defense based on a prior alleged approval. He contended that the Association had previously sanctioned his plan to place concrete pavers cut into 3×5 foot pieces within the setback. This disagreement led to an initial hearing on August 7, 2019, and a subsequent rehearing on December 20, 2019, after Mr. Colvin challenged the initial decision.

4. The Legal Breakdown: Why the Petition Was Dismissed

The matter was adjudicated by an Administrative Law Judge (ALJ) under the authority of A.R.S. § 32-2199(B). Despite the lengthy proceedings, the ALJ sustained the Respondent's jurisdictional objections and dismissed the petition based on two fundamental legal failures.

A "Dead on Arrival" Legal Strategy

Under Arizona law, the Petitioner bears the preponderance of the evidence burden. This requires the Petitioner to prove that their contention is "more probably true than not" or carries the "most convincing force."

Mr. Colvin’s strategy was fundamentally flawed. Under A.R.S. § 32-2199(B), a petitioner must allege and prove that the Association violated the community documents. Instead, Mr. Colvin’s arguments were focused entirely on proving that he had not violated the CC&Rs. Because he failed to allege or prove a specific violation committed by the Association, he failed to meet his evidentiary burden.

The Jurisdictional Trap: No Declaratory Judgments

A critical takeaway for any homeowner is that the Office of Administrative Hearings is a venue of limited jurisdiction. The Association argued, and the ALJ confirmed, that the tribunal does not have the authority to issue a "declaratory judgment."

In practical terms, the OAH cannot provide "clearance" for a homeowner’s project or issue a ruling simply stating that a homeowner’s pavers are compliant. The tribunal’s power is restricted to determining if the Association’s actions—such as the issuance of a fine or a notice—violated the CC&Rs. By asking the court to rule on the status of his own improvements rather than the illegality of the Association's enforcement, the Petitioner sought a remedy the court had no power to give.

5. Conclusion: 3 Essential Takeaways for Homeowners

The petition was officially dismissed on January 9, 2020, with the ALJ noting that the order was binding as it resulted from a rehearing. This case serves as a vital case study in procedural correctness:

  1. Frame the Petition Correctly: In administrative law, being "right" about your landscaping is insufficient. You must frame the dispute as a violation committed by the Association. Do not defend your actions; instead, prove the Association’s enforcement action contradicts the CC&Rs.
  2. The "Unassisted" Standard is Absolute: When CC&Rs specify "manual movability," they create a technical threshold. If an improvement requires a dolly, crowbar, or a second person to move, it is a violation. The Board's offer of "100-pound sections" is a common benchmark for what constitutes "one person unassisted."
  3. Respect the Finality of Rehearings: The OAH process is exhaustive. This dispute lasted from September 2018 to January 2020. Once a rehearing decision is issued, it is binding, and the path to appeal through the Superior Court is narrow and time-sensitive.

Before engaging in a legal battle over setbacks, homeowners must realize that the tribunal is there to police the Association, not to validate the homeowner. Review the fine print—and your procedural strategy—before the first stone is laid.

Case Participants

Petitioner Side

  • Myron H. Colvin (Petitioner)
    Appeared on behalf of himself

Respondent Side

  • Nicholas Nogami (Attorney)
    Appeared on behalf of Respondent Tierra Del Sol RV Resort Association
  • Lydia A. Peirce Linsmeier (Attorney)
    CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
    Received copy of decision via US mail

Neutral Parties

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

Larry Kline vs. The Foothills Community Association

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Case Summary

Case ID 20F-H2019012-REL
Agency Arizona Department of Real Estate
Tribunal —
Decision Date 2020-01-02
Administrative Law Judge —
Outcome —
Filing Fees Refunded —
Civil Penalties —

Parties & Counsel

Petitioner Larry Kline Counsel Pro se
Respondent The Foothills Community Association Counsel Austin Baillio, Esq.

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

20F-H2019012-REL Decision – 761847.pdf

Uploaded 2026-04-24T11:23:16 (150.9 KB)

20F-H2019012-REL Decision – 761847.pdf

Uploaded 2026-01-27T21:17:44 (150.9 KB)

Administrative Law Judge Decision: Kline vs. The Foothills Community Association

Executive Summary

On January 2, 2020, Administrative Law Judge Jenna Clark issued a decision in the matter of Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). The dispute centered on whether the Foothills Community Association (the "Association") was contractually obligated to repair a failing retaining wall located at the rear of Petitioner Larry Kline’s property.

The Petitioner alleged that the Association violated Article IV, Section 4.2(p) of the Association Bylaws by failing to maintain the wall, which separates his lot from the Foothills Golf Course. The Association denied liability, arguing the wall is not located within a "Common Area" and that no recorded instrument transfers maintenance responsibility to the Association. Following an evidentiary hearing on December 19, 2019, the Judge ruled in favor of the Association, concluding that the Petitioner failed to meet the burden of proof required to establish the Association's responsibility for the wall.

Analysis of Key Themes

1. Definition and Scope of Common Areas

A central theme of the dispute was the legal definition of "Common Area" as prescribed by the Association’s governing documents. Under Bylaws Article I, Section N, Common Areas are defined as Association-owned land, land intended for future conveyance to the Association, or specific easements granted for maintenance.

The evidence established that:

  • The retaining wall is located on the boundary of Petitioner's Lot 22 and the Foothills Golf Course.
  • The Association does not own the land underneath the retaining wall.
  • The Golf Course land is explicitly excluded from the Common Area per Bylaws Article IV, Section 4.5.
  • Tract A, a known Common Area, is located thirteen lots away from the Petitioner’s residence and has no physical or legal relationship to the wall in question.
2. Maintenance Liability for Party Walls and Fences

The Petitioner relied on Bylaws Article IV, Section 4.2(p) to argue for Association liability. This section dictates the rights and duties regarding "Party Walls" or "Party Fences." While the Association is responsible for maintenance in cases where fences are located between Common Areas and Lots or constructed by the Declarant on Common Areas, this responsibility does not extend to private walls between individual lots and non-Association land (such as the golf course).

3. Successorship and Easement Validity

The Petitioner presented a "Reservation of Easement" (1988) and a "Special Warranty Deed" (1995) to support his claim. However, the legal analysis found two critical gaps:

  • Successorship: The Petitioner could not establish that the Association was the successor or assign of the "Declarant" or "Dell E. Webb," the entities originally involved in the easement agreements.
  • Recorded Instruments: The 1995 Deed conveyed Tract A to the Association but did not convey an easement for the maintenance of the wall on Lot 22.
4. Technical Failure and Causation

The retaining wall's failure was attributed to water damage and a design flaw, with repairs estimated between $30,000 and $40,000. While the Petitioner cited failing anchors and a leaning structure, the Association raised the possibility that a leak from the Petitioner's in-ground pool may have compromised the wall's integrity. The engineering report provided by the Petitioner was noted to have omitted an underground inspection of the area between the pool and the wall.

Important Quotes with Context

On Common Area Definitions

"‘Common Area and Common Areas’ shall mean (a) all Association Land; (b) all land within The Foothills which the Declarant… makes available for use by Members… and (e) areas on a Lot or Parcel within easements granted to the Association… for the location, construction, maintenance, repair and replacement of a wall or fence."

— Bylaws Article I, Section N

Context: This definition serves as the baseline for determining whether the Association has any jurisdictional responsibility over a physical structure within the community.

On Maintenance Responsibility

"In the case of Party Fences (1) between Common Areas and Lots or Parcels, or (2) constructed by the Declarant or the Association on Common Areas within a Lot or Parcel, the Association shall be responsible for all maintenance thereof…"

— Bylaws Article IV, Section 4.2(p)(vi)

Context: The Petitioner argued this clause mandated the Association to fix his wall, but the court found the wall did not meet the "Common Area" criteria required to trigger this obligation.

On the Burden of Proof

"Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated a community document… A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not."

— Conclusions of Law ¶ 3-4

Context: This establishes the legal standard used by the Administrative Law Judge to determine that the Petitioner's evidence was insufficient to hold the Association liable.

Summary of Findings and Ruling

The Administrative Law Judge made the following determinations:

Factor Finding
Wall Location Private property/Golf course boundary; not a Common Area.
Easement Connectivity No legal or physical relationship between the Association's Tract A and Lot 22.
Successorship No evidence that the Association is the successor to the original Declarant's easement duties.
Liability No recorded instrument imparts a maintenance requirement on the Association for this wall.

Final Order: The Petitioner’s request for the Association to cover repair costs was denied.

Actionable Insights

  • Documentation of Successorship: When claiming rights under old easement agreements, homeowners must provide recorded instruments that explicitly link the current homeowners' association to the original Declarant's specific obligations and powers.
  • Verification of Common Area Boundaries: Property owners should consult Plat Maps and Tract Declarations to confirm whether a structure (like a retaining wall) is legally classified as a Common Area before initiating a petition for Association maintenance.
  • Evidence of Causation: In disputes involving structural failure, comprehensive engineering reports—including underground inspections where applicable (e.g., near pools)—are vital to rule out owner negligence or "willful or negligent acts" that would shift costs back to the member under Bylaw Article X, Section 10.3.
  • Burden of Proof Requirements: A petitioner must prove it is "more probably true than not" that a violation occurred. Mere interpretation of ambiguous language without supporting recorded deeds or specific bylaws is generally insufficient in administrative hearings.

Study Guide: Kline v. The Foothills Community Association

This study guide provides a comprehensive overview of the administrative law case Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). It examines the legal dispute regarding the maintenance responsibilities of a homeowners' association versus an individual property owner.

Key Concepts and Case Summary

1. Case Overview

The case involves a dispute between Petitioner Larry Kline and Respondent Foothills Community Association. Petitioner alleged that the Association violated its governing documents—specifically Bylaws Article IV, Section 4.2(p)—by failing to repair a failing retaining wall located at the back of his property.

2. Governing Documents and Definitions

The relationship between the parties is governed by several legal instruments that form an enforceable contract:

  • Declaration of Covenants, Conditions and Restrictions (CC&Rs): Recorded on April 10, 1987, these empower the Association to control property use.
  • Common Areas: Defined in Bylaws Article I, Section N as Association Land or areas within easements granted to the Association for maintenance and repair.
  • Declarant: Refers to the Foothills Joint Venture or its successors/assigns who have been granted rights via recorded instruments.
  • Party Walls/Fences: Shared structures between lots or between a lot and a common area.
3. The Central Dispute

The Petitioner’s property (Lot 22) features a retaining wall separating his land from the Foothills Golf Course. The wall is leaning due to a design flaw and water damage, with repair costs estimated between $30,000 and $40,000.

  • Petitioner’s Argument: The Association is liable for maintenance based on an Easement Agreement (1988) and a Special Warranty Deed (1995).
  • Respondent’s Argument: The wall is not in a Common Area; the Association is not a successor to the original "Declarant" of the easement; and the wall sits on private property, making maintenance the owner’s responsibility.
4. Legal Standards
  • Jurisdiction: The Arizona Department of Real Estate has the authority to decide disputes between homeowners and associations regarding violations of community documents.
  • Burden of Proof: The Petitioner bears the burden of proving a violation by a preponderance of the evidence (meaning the claim is more probably true than not).

Short-Answer Practice Questions

1. What specific section of the Bylaws did the Petitioner claim the Association violated?

Answer: Bylaws Article IV, Section 4.2(p).

2. According to Bylaws Article IV, Section 4.5, is "Golf Course Land" considered part of the Common Area?

Answer: No. The Bylaws explicitly state that Golf Course Land is not part of the Common Area.

3. What was the estimated cost for the remediation of the retaining wall?

Answer: Between $30,000.00 and $40,000.00.

4. Why did the Administrative Law Judge (ALJ) conclude that the Association was not responsible for the wall under the Easement Agreement?

Answer: The Petitioner failed to establish that the Association was a successor or assign of the "Declarant" who signed the original Easement Agreement.

5. What is the definition of "Preponderance of the Evidence" used in this case?

Answer: Evidence that has the most convincing force and superior evidentiary weight, making a contention "more probably true than not."

6. What physical feature of Lot 22 did the Association’s witness suggest might have contributed to the wall's damage?

Answer: An in-ground pool, which may have leaked and impacted the wall's anchor support system.

7. Is Tract A related to the Petitioner’s property on Lot 22?

Answer: No. Tract A is a Common Area throughway located thirteen lots away from Lot 22, with no legal or physical relationship to Lot 22's retaining wall.

Essay Prompts for Deeper Exploration

  1. Contractual Obligations in Planned Communities: Analyze how CC&Rs and Bylaws function as an enforceable contract between an Association and its members. Discuss the importance of "recorded instruments" in determining which party is responsible for the maintenance of specific structures like party walls.
  2. The Role of the "Declarant" and Successorship: Explain the legal significance of the term "Declarant" in this case. Why was the Petitioner's inability to prove the Association was a "successor or assign" of the original Declarant fatal to his claim regarding the Easement Agreement?
  3. Evidentiary Burdens in Administrative Hearings: Discuss the "preponderance of evidence" standard. In the context of this case, what specific types of evidence (e.g., engineering reports, deeds, plat maps) were most influential in the Judge’s final decision, and where did the Petitioner’s evidence fall short?

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who over-sees evidentiary hearings and makes findings of fact and conclusions of law for state agencies.
CC&Rs Declaration of Covenants, Conditions and Restrictions; the primary governing documents for a homeowners' association.
Common Area Land owned by the Association or specifically designated for Association use and maintenance in recorded documents.
Declarant The original developer of a community (Foothills Joint Venture) or a party to whom their rights have been officially assigned.
Easement A legal right to use another person's land for a specific purpose (e.g., maintenance of a wall or landscaping).
Party Wall / Fence A wall or fence located on or at the division line between contiguous lots or between a lot and a common area.
Preponderance of the Evidence The standard of proof in civil cases; evidence that is more convincing than the evidence offered in opposition.
Recorded Instrument A legal document (like a deed or declaration) that has been officially filed with the County Recorder's Office to provide public notice.
Shotcrete Wall A reinforcement method mentioned in the remediation proposal for the failing retaining wall.
Tract Declaration A recorded document that defines specific sections or subdivisions within a larger development.

thought Master Writer and Editor. Legal Consultant specializing in Planned Community Disputes and HOA Governance. Rewrite an initial draft into a final, publication-ready document. Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL). Outline, Expert Critique, Initial Draft, Source Context.

  • Tone: Professional, accessible, consultant-level nuance (strategic, not just reporting).
  • Fidelity: Prioritize Source Context (Arizona Department of Real Estate case).
  • Critique Point 1 (Persona): Frame Association strategy as a "defensive masterclass." Highlight Petitioner's lack of geotechnical due diligence regarding the pool.
  • Critique Point 2 (Successorship): Identify Dell E. Webb. Explain the failure to link the Association via a recorded instrument.
  • Critique Point 3 (Common Area/Tract A): Include "Tract A" details (13 lots away, only land in the 1995 Deed).
  • Critique Point 4 (Markdown Table): Add Bylaw Article IV, Section 4.5 (Golf Course Land is NOT Common Area).
  • Critique Point 5 (Synthesis): Add "Consultant's Notes" to the three missing links.
  • Critique Point 6 (Conclusion): Reference the Plat Map (no easement on Lot 22) and distinguish Special Warranty Deed vs. Easement Agreement.
  • Critique Point 7 (Bolding): Bold CC&Rs, Bylaws, Tract Declaration, Special Warranty Deed, Preponderance of the Evidence, Common Area.
  • Critique Point 8 (Venue): Mention the Arizona Department of Real Estate.
  • Critique Point 9 (Geography): Wall is on boundary of Lot 22 and Golf Course; HOA does not own the land.
  • Title: # The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility
  • Section 1: Introduction.
  • Hook: Financial risks of boundary disputes.
  • The Case: Larry Kline vs. The Foothills Community Association (20F-H2019012-REL).
  • Venue: Arizona Department of Real Estate.
  • Question: Who is responsible for perimeter structures?
  • Section 2: The Conflict.
  • Description of Lot 22 and the wall (leaning toward golf course).
  • Bullet points on physical state: Design flaws, failing anchors, leaning, water damage.
  • Cost: $30,000-$40,000.
  • Legal hook: Bylaws Article IV, Section 4.2(p).
  • Association refusal: Demanded evidence of liability.
  • Section 3: Decoding the Governing Documents.
  • Define Common Area (Bylaws Article I, Section N). Mention Tract A (13 lots away).
  • Section 4.2(p) (Party Fences/Walls).
  • Section 4.5 (Golf Course Land is NOT Common Area).
  • Markdown Table: Compare Arguments. Ensure Section 4.5 is the "smoking gun."
  • Section 4: The Hearing.
  • Standard: Preponderance of the Evidence.
  • Association's "defensive masterclass."
  • Patricia Ann Wontor's testimony: Tract A vs. Lot 22.
  • Rebuttal/Due Diligence failure: The in-ground pool. Mention Kline's water bill justification as insufficient.
  • Section 5: The Verdict.
  • Judge Jenna Clark's decision.
  • The Three Missing Links with Consultant's Notes.
  • Link 1: Dell E. Webb / Successorship.
  • Link 2: Recorded Instrument / Mandate.
  • Link 3: Land Ownership (Private/Golf course vs. HOA).
  • Section 6: Conclusion.
  • Actionable insights.
  • Know Your Boundaries: Plat Map details (Lot 22 exclusion).
  • Documentation is King: Special Warranty Deed vs. Easement Agreement.
  • The Burden of Proof: Preponderance of the Evidence.
  • Final thought: Legal review and property inspection.
  • Check bolding: CC&Rs, Bylaws, Tract Declaration, Special Warranty Deed, Common Area, Preponderance of the Evidence.
  • Verify facts: Tract A is 13 lots away. Original party was Dell E. Webb. Wall is on private/golf course land.
  • Tone check: Ensure it sounds like a consultant advising a client/reader. Avoid passive language.
  • Formatting: H1 title, H2/H3 headers, Markdown table, no conversational filler.
  • Critique: Frame pool leak as failure of due diligence. (Included).
  • Critique: Mention Tract A is 13 lots away. (Included).
  • Critique: Mention Section 4.5 in the table. (Included).
  • Critique: Mention Dell E. Webb and the "recorded instrument" link. (Included).
  • Critique: "Consultant's Note" for missing links. (Included).
  • Critique: Bold specific terms. (Done).

(Self-Correction during drafting): Make sure the table shows the "smoking gun" of Section 4.5 clearly.

(Source Check): The source says "Petitioner has not established that the Association is a successor or assign of the Declarant who signed the Easement Agreement." The original party to the 1988 agreement was Dell E. Webb (mentioned in the Findings of Fact #22).

(Source Check): The 1995 Special Warranty Deed conveyed Tract A to the Association. Tract A is 13 lots away.

(Final Formatting Check): Only Markdown H1 at start. No preamble.# The $40,000 Wall: Lessons in HOA Liability and Homeowner Responsibility

1. Introduction: The High Stakes of Property Maintenance

In the world of planned communities, the boundary between a private lot and a common area is more than a line on a map—it is a high-stakes financial divide. When a perimeter structure begins to fail, homeowners often assume the homeowners’ association (HOA) is naturally responsible for the repair. However, as one Phoenix homeowner discovered, making that assumption without a rock-solid legal foundation can lead to a costly defeat.

The case of Larry Kline vs. The Foothills Community Association (No. 20F-H2019012-REL), heard by the Arizona Department of Real Estate, serves as a masterclass in the complexities of community governance. At the heart of the dispute was a failing retaining wall and a potential $40,000 repair bill. The central question of the hearing: Who is truly responsible for structures sitting on the edge of private property and common areas?

2. The Conflict: A Leaning Wall and a Denied Request

The dispute centered on a massive retaining wall located along the back perimeter of Larry Kline’s property (Lot 22), which separates his residence from the Foothills Golf Course. The physical state of the wall was dire:

  • Design Flaws: A latent defect in the original wall design.
  • Structural Failure: Failing internal anchors causing the wall to lose its integrity.
  • Physical Displacement: The structure was visibly leaning toward the golf course.
  • Water Damage: Significant damage caused by prolonged water accumulation and soil pressure.

After consulting with engineering firms, Kline estimated the cost for reinforcement and remediation to be between $30,000 and $40,000. Relying on his interpretation of the community’s governing documents—specifically Bylaws Article IV, Section 4.2(p)—Kline demanded that the Association cover the repairs. The Association refused, maintaining that they held no liability for structures located on the perimeter of a private lot, and challenged Kline to provide a recorded mandate for such maintenance.

3. Decoding the Governing Documents: CC&Rs vs. Reality

To resolve the dispute, the Administrative Law Judge had to dissect the CC&Rs and Bylaws, specifically regarding the definitions of "Common Area" and "Party Walls."

Under the Bylaws, Common Area is strictly defined as land owned by the Association or land the "Declarant" intended to convey via a Recorded instrument. A critical piece of evidence was the Special Warranty Deed from 1995, which conveyed "Tract A" to the Association. However, "Tract A" was a drainage throughway located thirteen lots away from Kline’s property, with no physical or legal connection to Lot 22.

The following table highlights the strategic clash between the Petitioner's assumptions and the Association’s textual defense:

Petitioner’s Argument Association’s Defense
Legal Basis: Relied on a 1988 Reservation of Easement and a 1995 Special Warranty Deed. Legal Basis: Relied on the Plat Map, Tract Declaration, and Bylaws Section 4.5.
Liability: Argued the Association was a successor to the original developer and held maintenance duties in perpetuity. The "Smoking Gun": Bylaws Article IV, Section 4.5 explicitly states that "Golf Course Land shall not be part of the Common Area."
Interpretation: Interpreted Section 4.2(p) as mandating HOA repair for any boundary "Party Fence" or wall. Ownership: Proved the wall sat entirely on land owned by the Petitioner and the golf course, neither of which is Common Area.

4. The Hearing: A Defensive Masterclass

The December 2019 hearing hinged on the Preponderance of the Evidence. This standard required Mr. Kline to prove it was "more probably true than not" that the Association violated a community document.

The Association executed a defensive masterclass by highlighting the Petitioner’s failure to conduct proper due diligence. While Kline argued that the wall failed due to design defects, the Association suggested a more localized cause: Kline’s in-ground pool. They argued that an underground leak from the pool could have compromised the wall's anchor system.

In a pivotal moment, Kline conceded he had not commissioned a geotechnical soil evaluation or checked for pool leaks because he "did not notice any abnormal increases to his monthly water bill." From a consultant’s perspective, relying on a water bill instead of a professional inspection in a $40,000 dispute left the Petitioner’s case fatally vulnerable to rebuttal.

5. The Verdict: Why the Petition was Denied

Administrative Law Judge Jenna Clark concluded that the Petitioner failed to sustain his burden of proof. The denial rested on three "missing links":

  1. Failure to Establish Successor Status: The Petitioner could not prove the Association was the legal successor or assign of Dell E. Webb (the original party to the 1988 Easement Agreement).
  • Consultant’s Note: Without a recorded instrument expressly linking the Association to the original developer’s specific obligations, the "chain of authority" is broken.
  1. Lack of a Recorded Mandate: No Deed or Tract Declaration was presented that explicitly required the Association to maintain that specific wall on Lot 22.
  • Consultant’s Note: In HOA law, verbal "understandings" or historical assumptions are legally irrelevant compared to what is written in the recorded title.
  1. Private Property Location: It was undisputed that the wall sat on private land and golf course property.
  • Consultant’s Note: Because the wall was not on a Common Area, the maintenance protections of Bylaws Section 4.2(p) simply did not apply.

6. Conclusion: Key Takeaways for Every Homeowner

This case provides a sobering reminder that "common sense" in a neighborhood is rarely the same as "legal fact" in a courtroom.

  • Know Your Boundaries: Never assume a boundary wall is an HOA responsibility. Consult your subdivision's Plat Map specifically. In this case, the Plat Map showed "no easement listed for Lot 22," which was a decisive factor in the ruling.
  • Documentation is King: Understand the difference between a Special Warranty Deed and an Easement Agreement. A Deed conveying one specific area (like Tract A) does not automatically transfer maintenance duties to every other perimeter structure in the community.
  • The Burden of Proof: In administrative hearings, the responsibility lies entirely with the petitioner to provide a Preponderance of the Evidence. If the governing documents—the CC&Rs, Bylaws, and Tract Declaration—do not explicitly grant you a right, the tribunal cannot create one for you.

Before escalating a dispute involving high-cost repairs, homeowners should invest in professional property inspections and a rigorous legal review of their CC&Rs to ensure their claims are built on recorded evidence, not expensive assumptions.

Case Participants

Petitioner Side

  • Larry Kline (Petitioner)
    The Foothills Community Association
    Property owner of Lot 22, Club House Estates; appeared on his own behalf.

Respondent Side

  • Austin Baillio (Attorney)
    Maxwell & Morgan, P.C.
    Appeared on behalf of The Foothills Community Association. Also spelled B. Austin Baillo.
  • Patricia Ann Wontor (Witness)
    The Foothills Community Association
    Onsite Community Manager for the Association.

Neutral Parties

  • Joe Robinson (Observer)
    Observed the hearing.
  • Sandra Salvo (Observer)
    Observed the hearing.
  • Jenna Clark (Administrative Law Judge)
    Office of Administrative Hearings
    Presiding judge.
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the order and decision.