Steven Schmidt v. Catalina Ridge Community Association, Inc.

Posted on July 13, 2022 by [email protected]

Case Summary

Case ID	22F-H2222040-REL
Agency	Arizona Department of Real Estate
Tribunal	—
Decision Date	2022-07-13
Administrative Law Judge	JC
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Steven J. Schmidt	Counsel	Pro Se
Respondent	Catalina Ridge Community Association, Inc.	Counsel	Michael S. Shupe, Esq. (Goldschmidt Shupe, PLLC)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

22F-H2222040-REL Decision – 2022 04 22 ADRE Response HO22-22040.pdf

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22F-H2222040-REL Decision – 973190.pdf

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22F-H2222040-REL Decision – 975956.pdf

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22F-H2222040-REL Decision – 983362.pdf

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22F-H2222040-REL Decision – Date of Hearing Recieved.pdf

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22F-H2222040-REL Decision – HO22-22040_Notice_Petition.pdf

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22F-H2222040-REL Decision – Notice of Hearing .pdf

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22F-H2222040-REL Decision – Response to Petition – 4.22.22.pdf

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22F-H2222040-REL Decision – 2022 04 22 ADRE Response HO22-22040.pdf

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22F-H2222040-REL Decision – 973190.pdf

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22F-H2222040-REL Decision – 975956.pdf

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22F-H2222040-REL Decision – 983362.pdf

Uploaded 2026-01-23T17:46:40 (165.5 KB)

22F-H2222040-REL Decision – Date of Hearing Recieved.pdf

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22F-H2222040-REL Decision – HO22-22040_Notice_Petition.pdf

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22F-H2222040-REL Decision – Notice of Hearing .pdf

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22F-H2222040-REL Decision – Response to Petition – 4.22.22.pdf

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Briefing Document: Steven Schmidt v. Catalina Ridge Community Association, Inc.

Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision regarding a dispute between Steven Schmidt (Petitioner) and the Catalina Ridge Community Association, Inc. (Respondent/Association). The central conflict involved the interpretation of the Association's Covenants, Conditions, and Restrictions (CC&Rs) specifically concerning the allowable square footage of a detached accessory structure.

The Petitioner sought to construct a 1,441-square-foot detached garage, arguing that the CC&Rs allowed for a size based on 40% of his "Dwelling Unit," which he interpreted as the total structure including his existing attached garage and porches. The Association denied the application, contending that "Dwelling Unit" refers only to the livable square footage of the home. Following a formal hearing on June 23, 2022, Administrative Law Judge (ALJ) Jenna Clark ruled in favor of the Association, concluding that the Petitioner failed to prove a violation of the CC&Rs.

Case Overview and Procedural History

Item	Details
Case Number	22F-H2222040-REL (ADRE Case # HO22-22/040)
Petitioner	Steven Schmidt (Homeowner, Lot 9)
Respondent	Catalina Ridge Community Association, Inc.
Administrative Law Judge	Jenna Clark
Primary Issue	Interpretation of CC&Rs Article 7, Section 7 (Accessory Structure size)
Petition Date	March 21, 2022
Hearing Date	June 23, 2022
Decision Date	July 13, 2022

Background

In May 2019, the Petitioner submitted plans to the Architectural Review Committee (ARC) for a detached garage project. The Association issued three separate denial letters between July 2019 and February 2020. The primary reason for denial was that the proposed 1,441-square-foot structure exceeded the allowable size limits dictated by the CC&Rs.

Analysis of Key Themes

1. The Definition of "Dwelling Unit"

The crux of the legal dispute was the definition of the term "Dwelling Unit" as used in CC&Rs Article 7, Section 7.

The Provision: "Accessory structures shall be limited to 5% of the lot area or forty percent (40%) of the main Dwelling Unit, whichever is less."
Petitioner's Interpretation: Argued that a "Dwelling Unit" is the entire physical structure. Under this view, his dwelling unit totaled 4,438 square feet (2,820 livable + 1,002 attached garage + 616 porches). This would allow an accessory structure of up to 1,775 square feet.
Respondent's Interpretation: Maintained that "Dwelling Unit" is a defined term separate from garages and porches. Under this view, the Petitioner’s dwelling unit was only the 2,820 square feet of livable space, limiting the accessory structure to 1,128 square feet.

2. Contractual Hierarchy and Internal Consistency

The Association’s counsel, Michael Shupe, argued that the CC&Rs must be read as a whole. He pointed to specific definitions in Article I:

Section 1.15: Defines "Dwelling Unit" as a building or portion of a building designed for use as a "Residence."
Section 1.29: Defines "Residence" as a lot together with the "residential Dwelling Unit, garage, patio and other Improvements."

By listing "Dwelling Unit" separately from "garage" and "patio" in the definition of "Residence," the Association argued the drafters intended these to be distinct categories.

3. Lay Interpretation vs. Legal Precision

The Petitioner, appearing on his own behalf, emphasized a "lay interpretation" of the documents. He argued that as a non-lawyer, he perceived the dwelling unit to be the total structure. He contended that if "Dwelling Unit" only meant livable space, other sections of the CC&Rs—such as those regarding solar panels or antennas being permitted on a "Dwelling Unit"—would imply those items could not be placed on garages or porches, which he deemed "nonsense."

Important Quotes with Context

From Petitioner Steven Schmidt

"The clear intent of the CC&Rs is to treat the dwelling unit as an entire structure, including the garage and porches… The Association has ignored the language of their own CC&Rs and design guidelines."

Context: Closing argument during the June 23 hearing, where Schmidt emphasized that the physical architecture of the home should dictate the calculation.

"I read the CC&Rs. I perceive them in good taste to mean what I have defined that they mean… The CC&Rs do not begin by [saying] 'you must get a contract expert to read and interpret for you, Mr. Owner.'"

Context: Rebuttal argument addressing the Association's reliance on technical legal definitions found in the "Definitions" section of the CC&Rs.

From Respondent’s Counsel (Michael Shupe)

"As a matter of contract interpretation, you look at the entire contract… one of the principal ideas is to look at the express language and find out if there's any ambiguity."

Context: Arguments made during the hearing to justify why the ARC looked at the "Definitions" section of the CC&Rs rather than just Section 7.7.

From Administrative Law Judge Jenna Clark

"It is clear from the record that a 'Dwelling Unit' can only consist of a portion of a building that is distinct from other structures and improvements like garages and patios."

Context: Found in the "Conclusions of Law" section of the final decision, explaining why the Petitioner’s calculation was rejected.

Data Points and Square Footage Calculations

The following table reflects the data used by the ALJ to reach the final decision:

Structure Component	Square Footage
Livable Area (Home)	2,820
Attached Garage	1,002
Covered Front Porch	289
Covered Rear Porch	327
Petitioner's Claimed "Dwelling Unit" Total	4,438
Calculated "Dwelling Unit" per ALJ Decision	2,820 (Livable Only)
Petitioner's Proposed Detached Garage	1,441
Max Allowable Size (40% of 2,820)	1,128 (Approx.)

Note: The ALJ decision explicitly noted that with a livable area of 2,820, the maximum allowable square footage for an accessory structure is capped at 1,141.2 (though 40% of 2,820 is 1,128, the decision mentions 2,853 as a figure in one instance, leading to the 1,141.2 cap).

Actionable Insights

Definition Primacy: Homeowners and Associations must prioritize the "Definitions" section of their governing documents. Even if a specific section (like Article 7.7) seems clear in isolation, defined terms carry their specific meaning throughout the entire document.
Burden of Proof: In administrative hearings of this nature, the Petitioner bears the burden of proving a violation by a "preponderance of the evidence." Lay interpretations, however logical they may seem from a spatial or architectural perspective, often fail to overcome specific contractual definitions.
Consistency in Denials: The Association's success in this matter was supported by their consistent application of the 2,500-square-foot minimum livable space requirement (Section 7.6) and the consistent separation of "livable" space from "garages/patios" in both the CC&Rs and Design Guidelines.
Administrative Process: The case highlights the utility of prehearing conferences to identify stipulated facts, which streamlined this hearing by removing factual disputes and focusing solely on the legal interpretation of terms.

Case Analysis Study Guide: Schmidt v. Catalina Ridge Community Association

This study guide provides a comprehensive overview of the administrative hearing regarding the dispute between Steven Schmidt (Petitioner) and the Catalina Ridge Community Association, Inc. (Respondent). It is designed to assist in understanding the nuances of contract interpretation within the context of homeowners' association (HOA) governance.

I. Case Overview and Key Concepts

Central Legal Issue

The primary conflict in this case is the interpretation of Article 7, Section 7 of the Covenants, Conditions, and Restrictions (CC&Rs). Specifically, the parties disagreed on the method for calculating the allowable square footage of an "accessory structure" (in this instance, a detached garage).

The Mathematical Conflict

The CC&Rs state that an accessory structure is limited to 5% of the lot area or 40% of the main Dwelling Unit, whichever is less. While the lot area was not in dispute, the definition of "Dwelling Unit" was the crux of the case.

Component	Petitioner’s Calculation	Respondent’s Calculation
Livable Square Footage	2,820	2,820
Covered Front Porch	289	Excluded
Covered Rear Porch	327	Excluded
Attached Garage	1,002	Excluded
Total "Dwelling Unit" Base	4,438 sq. ft.	2,820 sq. ft.
Allowable Accessory Size (40%)	1,775 sq. ft.	1,128 sq. ft.

Key Legal Principles

Absolute Source Fidelity: The Administrative Law Judge (ALJ) must interpret terms based on the definitions provided within the governing documents (CC&Rs and Design Guidelines).
Contract as a Whole: Under legal principles of contract interpretation, a document must be read in its entirety to ensure no provision is rendered meaningless or contrary to another.
Burden of Proof: In these proceedings, the Petitioner bears the burden of proving by a preponderance of the evidence that the Association violated the community documents.

II. Short-Answer Practice Questions

1. On what date did the Association issue the initial denial letter for the Petitioner's detached garage project? Answer: July 25, 2019.

2. According to CC&R Article 7, Section 7, what is the maximum height allowed for an accessory structure? Answer: Twenty (20) feet.

3. What was the square footage of the detached garage proposed by Steven Schmidt? Answer: 1,441 square feet.

4. The Association’s Design Guidelines (Section 3.2.2) require a minimum livable square footage of 2,500. What specific areas are explicitly excluded from this minimum requirement? Answer: Garages, porches, Guest Houses, and patios.

5. Why did the ALJ strike "Stipulated Finding of Fact number 11" during the hearing? Answer: There was a point of contention regarding a typographical error in the date (noting February 5, 2022, instead of 2020), meaning it was no longer a stipulated (agreed-upon) fact.

6. What was the final decision rendered by Administrative Law Judge Jenna Clark on July 13, 2022? Answer: The petition was denied because the Petitioner failed to establish that the Respondent violated the CC&Rs.

7. How much was the filing fee paid by the Petitioner to the Department of Real Estate to initiate the dispute? Answer: $500.00.

III. Essay Prompts for Deeper Exploration

1. The Conflict of Definitions

Compare the Petitioner's "lay interpretation" of the term "Dwelling Unit" with the Respondent's "contractual interpretation." How did the inclusion of Section 1.15 and Section 1.29 of the CC&Rs influence the ALJ's final decision? In your answer, address why the ALJ concluded that a "Dwelling Unit" must be distinct from structures like garages and patios.

2. Procedural Requirements of Administrative Hearings

The pre-hearing conference established several strict deadlines for both parties. Discuss the importance of the Subpoena deadline, the Disclosure deadline, and the Pre-hearing memorandum. How do these procedural steps ensure a fair hearing, and what are the consequences of failing to adhere to them (e.g., the admission of exhibits or the calling of witnesses)?

3. Demonstrative Evidence vs. Formal Record

During the hearing, the Petitioner utilized "demonstrative evidence" (large-scale plans on easels). Explain the ALJ's ruling on why these large visual aids were not admitted into the formal evidentiary record. Discuss the practical challenges of "spatial arguments" in a recorded administrative setting and the alternative solutions suggested by the court.

IV. Glossary of Important Terms

Accessory Structure: Structures including, but not limited to, detached garages and guest homes, which are subject to specific size and height limitations under the CC&Rs.
ARC (Architectural Review Committee): The body within the Association responsible for reviewing and approving or denying construction and modification applications on lots.
Bates Stamps: Numerical page labels used on exhibits to ensure that all parties and the court can easily reference specific pages during testimony and deliberation.
CC&Rs (Covenants, Conditions, and Restrictions): The enforceable contract between an HOA and its property owners that governs property use and community standards.
Dwelling Unit: As defined in CC&R Section 1.15, any building or portion of a building situated upon a lot designed and intended for use and occupancy as a residence by a single family.
In Limine (Motions in Limine): Housekeeping issues or motions raised at the onset of a hearing to limit or prevent certain evidence from being presented.
Livable Square Footage: The interior residential space of a home, which, according to the Association’s guidelines, excludes non-livable areas such as garages, porches, and patios.
Preponderance of the Evidence: The standard of proof in civil and administrative matters, meaning the evidence shows that a contention is "more probably true than not."
Stipulated Facts: Facts that both the Petitioner and Respondent agree are true before the hearing begins, allowing the court to focus only on the remaining points of legal or factual dispute.

Building by the Numbers: Lessons from a 1,441-Square-Foot Garage Dispute

Introduction: The High Stakes of Home Improvements

For many homeowners, the ultimate property goal is the addition of a sprawling detached workshop or a custom multi-car garage. However, in communities governed by Homeowners Associations (HOAs), these architectural dreams are often tethered to the cold, hard math of Covenants, Conditions, and Restrictions (CC&Rs). Navigating these rules requires more than just a set of blueprints; it requires a surgical understanding of how your community defines its building limits.

The case of Steven Schmidt v. Catalina Ridge Community Association, Inc., adjudicated before the Arizona Office of Administrative Hearings (OAH), serves as a cautionary tale for any homeowner. What began as a request for a 1,441-square-foot detached garage devolved into a multi-year legal battle over a single mathematical definition. The central conflict? The specific method used to determine the allowable size of an accessory structure.

The Core Conflict: The "40% Rule" Explained

The dispute originated when Petitioner Steven Schmidt proposed a 1,441-square-foot standalone garage. The Catalina Ridge Architectural Review Committee (ARC) denied the project, asserting it exceeded the size limitations set forth in CC&R Article 7.7.

To understand the denial, one must look at the community's "lesser of" formula for accessory structures. Under Article 7.7, a structure is limited to:

5% of the total lot area; or
40% of the "main Dwelling Unit," whichever is less.

In this case, the Petitioner's lot was approximately 46,300 square feet. A 5% calculation would have allowed for a massive 2,315-square-foot structure. Consequently, the "40% of the main Dwelling Unit" rule became the controlling—and far more restrictive—cap. The entire case hinged on two opposing interpretations of what "Dwelling Unit" actually means:

The Petitioner’s View: The "Dwelling Unit" should encompass the home's total physical footprint, including livable space, the attached garage, and porches.
The Association’s View: The "Dwelling Unit" is a legal term referring strictly to the livable, conditioned square footage of the home.

The Calculation Clash: Homeowner Math vs. HOA Math

The following table highlights the significant gap created by these two interpretations. While the Petitioner used a base of 4,438 square feet to justify his project, the ALJ ultimately adopted the Association's more conservative figures.

Component	Petitioner’s Calculation (Total Footprint)	Association’s Calculation (Livable Only)
Livable Area	2,820 sq. ft.	2,853 sq. ft.*
Front Porch	289 sq. ft.	(Excluded)
Rear Porch	327 sq. ft.	(Excluded)
Attached Garage	1,002 sq. ft.	(Excluded)
Total Base Area	4,438 sq. ft.	2,853 sq. ft.
Allowable 40% Cap	1,775.2 sq. ft.	1,141.2 sq. ft.

\Note: While the Petitioner estimated his livable space at 2,820 sq. ft., the ALJ utilized the Association's calculated figure of 2,853 sq. ft. to determine the final legal cap. Under the HOA's math, the proposed 1,441 sq. ft. garage exceeded the limit by nearly 300 square feet.*

The Legal Deep Dive: Definitions Matter

In the courtroom, "common sense" interpretations of space often fail when compared to the specific language of a contract. To resolve the dispute, ALJ Jenna Clark performed a deep dive into the Article I definitions of the CC&Rs, specifically contrasting Section 1.15 (Dwelling Unit) with Section 1.29 (Residence).

The ruling relied on the legal principle of Expressio Unius est Exclusio Alterius—the idea that the express mention of one thing excludes others. The ALJ highlighted Section 1.29, which defines a "Residence" as:

“'Residence' means any subdivided Lot shown on the Plat, together with the residential Dwelling Unit, garage, patio and other Improvements thereon…"

By listing "Dwelling Unit," "garage," and "patio" as separate items in a series, the contract legally establishes them as distinct, mutually exclusive entities. If the "Dwelling Unit" already included the garage and patio, listing them separately would make those words redundant—a violation of standard contract interpretation rules. Furthermore, the Association pointed to Section 7.6, which explicitly excludes garages and porches when establishing minimum livable square footage requirements (2,500 sq. ft.).

The Petitioner argued that if you exclude garages and porches, the community's minimum size requirements become "nonsense" because a house cannot exist as livable space alone. The ALJ rejected this functionalist view, favoring a textualist approach: the document says what it says, regardless of the homeowner's personal logic.

The Final Verdict: Why the ALJ Ruled for the HOA

On July 13, 2022, the Arizona Office of Administrative Hearings (OAH) issued its final decision. ALJ Jenna Clark ruled in favor of the Catalina Ridge Community Association.

The ALJ concluded that under the governing documents, a "Dwelling Unit" is a specific portion of a building intended for residential occupancy and is legally distinct from improvements like garages and patios. Because the Petitioner bore the burden of proof to show the HOA had violated the CC&Rs, and failed to do so, the Association's denial was upheld. The 1,441-square-foot garage was officially denied for exceeding the 1,141.2-square-foot cap.

Key Takeaways for Homeowners

As a consultant, I see these disputes frequently. Here are the strategic lessons to take from the Schmidt case:

Livable Area $\neq$ Physical Footprint: In the world of HOAs, your "house" may be 4,000 square feet of stucco and roof, but its "Dwelling Unit" size—the number used for regulatory caps—is likely limited to your conditioned, livable square footage.
Definitions Overrule Reality: Do not rely on dictionary definitions or "common sense." Always check the "Definitions" section of your CC&Rs first. If a term like "Residence" or "Improvement" is defined there, that definition is the only one that matters in court.
The Burden of Proof Bias: In an administrative hearing, the burden of proof rests on the homeowner. If the contract language is even slightly in favor of the Association’s interpretation, the "tie" effectively goes to the Board unless you can prove a clear, express violation of the rules.

Conclusion: Navigating Your Next Project

The Schmidt case is a sobering reminder that a difference of just 300 square feet can lead to a multi-year legal battle and thousands of dollars in wasted planning. Precise language in community documents exists to maintain neighborhood character and consistency, even when that language leads to difficult math for the individual homeowner.

Before you invest in professional plans or architectural renderings, consult with your Architectural Review Committee (ARC). Ask them specifically for their "base calculation" of your dwelling unit. Understanding the community’s "rules of the road" and their specific definitions is the only way to ensure your project moves from the drawing board to the backyard without a legal detour.

Case Participants

Petitioner Side

Steven J. Schmidt (Petitioner)
Catalina Ridge Community Association
Homeowner of Lot 9

Respondent Side

Michael S. Shupe (Counsel for Respondent)
Goldschmidt Shupe, PLLC
Susan Workman (President)
Catalina Ridge Community Association, Inc.
Phyllis Kapellen (Vice-President)
Catalina Ridge Community Association, Inc.
Gina Batali (Secretary)
Catalina Ridge Community Association, Inc.
Jason Boyd (Director)
Catalina Ridge Community Association, Inc.

Neutral Parties

Jenna Clark (Administrative Law Judge)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Daniel Y. Jones (Division Manager)
Arizona Department of Real Estate
Abby Hansen (HOA Coordinator)
Arizona Department of Real Estate
Miranda Alvarez (Legal Secretary)
Office of Administrative Hearings

Gregory Ehle V. Fulton Ranch Homeowners Association

Posted on July 11, 2022 by [email protected]

Case Summary

Case ID	22F-H2222031-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2022-07-11
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge dismissed the petition after finding that the Petitioner failed to meet his burden of proof to show that the Fulton Ranch Homeowners Association violated A.R.S. § 33-1804(E)(2) concerning an emergency board meeting. The evidence established that no such meeting took place, and the statute does not require the Board to hold one.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Gregory Ehle	Counsel	—
Respondent	Fulton Ranch Homeowners Association	Counsel	Emily H. Mann, Esq.

Alleged Violations

A.R.S. § 33-1804(E)(2)

Outcome Summary

The Administrative Law Judge dismissed the petition after finding that the Petitioner failed to meet his burden of proof to show that the Fulton Ranch Homeowners Association violated A.R.S. § 33-1804(E)(2) concerning an emergency board meeting. The evidence established that no such meeting took place, and the statute does not require the Board to hold one.

Why this result: Petitioner failed to establish the violation by a preponderance of the evidence, as he conceded he did not know if an emergency meeting was held and could not provide legal authority showing that one was required.

Key Issues & Findings

Alleged violation regarding an emergency meeting of the board members.

Petitioner alleged that the Respondent HOA violated A.R.S. § 33-1804(E)(2) concerning the procedures for an emergency board meeting, specifically regarding a message sent out by the HOA's managing agent. The case proceeded on this single issue after Petitioner failed to pay the required additional filing fees for four total issues claimed.

Orders: The Administrative Law Judge dismissed the petition, concluding that the Respondent HOA did not hold an emergency board meeting and was not required by A.R.S. § 33-1804(E)(2) to hold one.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1804(E)(2)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Analytics Highlights

Topics: emergency meeting, board of directors, failure to pay filing fee, burden of proof, dismissal, A.R.S. 33-1804

Additional Citations:

A.R.S. § 33-1804(E)(2)
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

22F-H2222031-REL Decision – 964714.pdf

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22F-H2222031-REL Decision – 964973.pdf

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22F-H2222031-REL Decision – 965150.pdf

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22F-H2222031-REL Decision – 965339.pdf

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22F-H2222031-REL Decision – 967084.pdf

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22F-H2222031-REL Decision – 967089.pdf

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22F-H2222031-REL Decision – 967102.pdf

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22F-H2222031-REL Decision – 973304.pdf

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22F-H2222031-REL Decision – 977404.pdf

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22F-H2222031-REL Decision – 982867.pdf

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22F-H2222031-REL Decision – 964714.pdf

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22F-H2222031-REL Decision – 964973.pdf

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22F-H2222031-REL Decision – 965150.pdf

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22F-H2222031-REL Decision – 965339.pdf

Uploaded 2026-01-23T17:44:46 (40.0 KB)

22F-H2222031-REL Decision – 967084.pdf

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22F-H2222031-REL Decision – 967089.pdf

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22F-H2222031-REL Decision – 967102.pdf

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22F-H2222031-REL Decision – 973304.pdf

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22F-H2222031-REL Decision – 977404.pdf

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22F-H2222031-REL Decision – 982867.pdf

Uploaded 2026-01-23T17:45:09 (106.4 KB)

This summary details the proceedings, key arguments, and final decision in the administrative hearing case of *Gregory Ehle v. Fulton Ranch Homeowners Association* (No. 22F-H2222031-REL), held before Administrative Law Judge (ALJ) Velva Moses-Thompson.

Key Facts and Procedural History

Petitioner Gregory Ehle filed a petition with the Arizona Department of Real Estate (AZDRE) around February 2, 2022, alleging four separate violations by the Respondent, Fulton Ranch Homeowners Association (Fulton Ranch). Ehle paid a $500 filing fee, but the tribunal ordered him to remit an additional $1,500 for the four claims. Ehle failed to pay the outstanding fee by the deadline (May 6, 2022). Consequently, and because Ehle failed to notify the tribunal of his preferred single issue, the ALJ determined that the sole issue to be addressed at the June 21, 2022, hearing was an alleged violation of A.R.S. § 33-1804(E)(2) concerning an emergency meeting of the board members.

Hearing Proceedings and Main Arguments

The hearing took place on June 21, 2022. Petitioner Ehle, appearing on his own behalf, initially failed to appear, but the hearing proceeded after he connected virtually.

Petitioner's Argument: Ehle contended that a November 12, 2020, notice issued by Fulton Ranch regarding the cessation of responses to his emails constituted a matter of urgency that should have necessitated an emergency board meeting. Ehle alleged that if an emergency meeting had been conducted, the required minutes were not published at the next regular board meeting. However, under examination, Ehle conceded that he was unaware of whether an emergency board meeting was actually held.

Respondent's Argument: Fulton Ranch, represented by Emily Mann, Esq., argued for dismissal on multiple grounds, including a potential bar by the one-year statute of limitations. The primary argument, supported by testimony from Kevin Hearty (Division Vice President for the community manager, CCMC), was that no emergency board meeting occurred between September 2020 and November 12, 2020. Fulton Ranch asserted that A.R.S. § 33-1804(E)(2) governs the *procedure* for an emergency meeting, and since no meeting was held, no violation of the procedure could have occurred.

Outcome and Legal Decision

The ALJ issued the decision on July 11, 2022.

Key Legal Points and Findings:

Petitioner bore the burden of proof to establish a violation by a preponderance of the evidence.
The weight of the evidence showed that Fulton Ranch did not hold an emergency board meeting regarding the decision concerning Mr. Ehle's emails.
The ALJ explicitly concluded that A.R.S. § 33-1804(E)(2) allows the Board to conduct an emergency meeting, but the statute does not require the Board to hold one. Ehle failed to provide legal authority supporting his contention that a meeting was mandatory.

Final Decision: Because Ehle failed to establish that Fulton Ranch violated A.R.S. § 33-1804(E)(2), the Administrative Law Judge dismissed the petition.

Questions

Question

Is my HOA board legally required to hold an emergency meeting for urgent matters?

Short Answer

No, the statute allows for emergency meetings but does not mandate them.

Detailed Answer

The ALJ determined that while state law permits a board to call an emergency meeting for issues that cannot wait 48 hours, the homeowner failed to prove there is any legal requirement forcing the board to hold one. The board has the discretion to call such meetings but is not obligated to do so.

Alj Quote

Mr. Ehle failed to provide any legal authority in his petition or at hearing to support his contention that the Board was required to hold an emergency board meeting.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

emergency meetings
board obligations

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, the homeowner filing the complaint must prove their case by a 'preponderance of the evidence,' meaning they must show it is more likely than not that the violation occurred.

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

burden of proof
legal standards

Question

Can I be penalized if I don't pay the full filing fees for all my complaints?

Short Answer

Yes, the tribunal will limit the hearing to only the issues covered by the paid fees.

Detailed Answer

If a homeowner alleges multiple violations but only pays the filing fee for one, the tribunal may dismiss the unpaid claims and order the homeowner to choose a single issue to proceed with at the hearing.

Alj Quote

The tribunal ordered Petitioner to pay an additional $1,500 for the four issues claimed. However, Petitioner failed to do so… IT IS ORDERED that the single issue to be addressed at hearing is an alleged violation of A.R.S. § 33-1804(E)(2)…

Legal Basis

Procedural Order

Topic Tags

filing fees
procedure

Question

Can I punish my HOA for failing to produce minutes for a meeting they claim never happened?

Short Answer

No, if no meeting was held, there are no minutes to produce.

Detailed Answer

You cannot successfully claim a procedural violation (like missing minutes) for a meeting that did not take place. If the evidence shows no meeting occurred, the claim will be dismissed.

Alj Quote

The weight of the evidence shows that Fulton Ranch did not hold an emergency board meeting… Therefore, the Administrative Law Judge concludes that Mr. Ehle has failed to establish that Fulton Ranch violated A.R.S. § 33-1804(E)(2) and the petition should be dismissed.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

meeting minutes
evidence

Question

What qualifies as an 'emergency' for an HOA board meeting?

Short Answer

Matters that cannot be delayed for the standard 48-hour notice period.

Detailed Answer

State law defines an emergency meeting as one called to discuss business or take action that is too urgent to wait for the standard 48 hours required for notice of a regular meeting.

Alj Quote

An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

emergency meetings
definitions

Question

Can I attend my HOA dispute hearing virtually?

Short Answer

Yes, hearings can be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings allows parties to appear either in person or virtually (e.g., via Google Meet) for the proceedings.

Alj Quote

Either party may appear virtually or in person for the hearing.

Legal Basis

Procedural Order

Topic Tags

hearings
procedure

Question

What does 'preponderance of the evidence' mean?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This is the standard of proof used in these hearings. It is not about the number of witnesses, but the convincing force of the evidence that inclines an impartial mind to one side.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Morris K. Udall, Arizona Law of Evidence

Topic Tags

legal definitions
evidence

Case

Docket No: 22F-H2222031-REL
Case Title: Gregory Ehle v. Fulton Ranch Homeowners Association
Decision Date: 2022-07-11
Alj Name: Velva Moses-Thompson
Tribunal: OAH
Agency: ADRE

Questions

Question

Is my HOA board legally required to hold an emergency meeting for urgent matters?

Short Answer

No, the statute allows for emergency meetings but does not mandate them.

Detailed Answer

Alj Quote

Mr. Ehle failed to provide any legal authority in his petition or at hearing to support his contention that the Board was required to hold an emergency board meeting.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

emergency meetings
board obligations

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (petitioner) bears the burden of proof.

Detailed Answer

Alj Quote

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

Legal Basis

A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)

Topic Tags

burden of proof
legal standards

Question

Can I be penalized if I don't pay the full filing fees for all my complaints?

Short Answer

Yes, the tribunal will limit the hearing to only the issues covered by the paid fees.

Detailed Answer

Alj Quote

Legal Basis

Procedural Order

Topic Tags

filing fees
procedure

Question

Can I punish my HOA for failing to produce minutes for a meeting they claim never happened?

Short Answer

No, if no meeting was held, there are no minutes to produce.

Detailed Answer

You cannot successfully claim a procedural violation (like missing minutes) for a meeting that did not take place. If the evidence shows no meeting occurred, the claim will be dismissed.

Alj Quote

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

meeting minutes
evidence

Question

What qualifies as an 'emergency' for an HOA board meeting?

Short Answer

Matters that cannot be delayed for the standard 48-hour notice period.

Detailed Answer

State law defines an emergency meeting as one called to discuss business or take action that is too urgent to wait for the standard 48 hours required for notice of a regular meeting.

Alj Quote

An emergency meeting of the board of directors may be called to discuss business or take action that cannot be delayed for the forty-eight hours required for notice.

Legal Basis

A.R.S. § 33-1804(E)(2)

Topic Tags

emergency meetings
definitions

Question

Can I attend my HOA dispute hearing virtually?

Short Answer

Yes, hearings can be conducted via video conferencing or telephone.

Detailed Answer

The Office of Administrative Hearings allows parties to appear either in person or virtually (e.g., via Google Meet) for the proceedings.

Alj Quote

Either party may appear virtually or in person for the hearing.

Legal Basis

Procedural Order

Topic Tags

hearings
procedure

Question

What does 'preponderance of the evidence' mean?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

This is the standard of proof used in these hearings. It is not about the number of witnesses, but the convincing force of the evidence that inclines an impartial mind to one side.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Morris K. Udall, Arizona Law of Evidence

Topic Tags

legal definitions
evidence

Case

Docket No: 22F-H2222031-REL
Case Title: Gregory Ehle v. Fulton Ranch Homeowners Association
Decision Date: 2022-07-11
Alj Name: Velva Moses-Thompson
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Gregory Ehle (petitioner)
Appeared on behalf of himself.

Respondent Side

Emily H. Mann (HOA attorney)
Phillips, Maceyko & Battock, PLLC
Appeared on behalf of Respondent Fulton Ranch Homeowners Association.
Kevin Hardy (witness)
CCMC
Division Vice President for Fulton Ranch's Community Manager (CCMC).

Neutral Parties

Velva Moses-Thompson (ALJ)
OAH
Louis Dettorre (Commissioner)
ADRE
Miranda Alvarez (legal secretary)
OAH
Handled document transmission.
c. serrano (staff)
OAH
Handled document transmission.
A. Hansen (staff)
ADRE
Listed as contact for ADRE.
v. nunez (staff)
ADRE
Listed as contact for ADRE.
d. jones (staff)
ADRE
Listed as contact for ADRE.
l. abril (staff)
ADRE
Listed as contact for ADRE.

Other Participants

Natasha Bell (community manager)
CCMC
Former CCMC employee who served as the association's community manager in 2020.

Roberta J Stevenson-McDemott v. Four Palms Homeowners

Posted on July 8, 2022 by [email protected]

Case Summary

Case ID	22F-H2222033-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2022-07-08
Administrative Law Judge	Adam D. Stone
Outcome	The petition was denied because the Petitioner failed to meet her burden of proving a violation of A.R.S. § 33-1258, as she had not made a proper written request for the documents since 2019, as required by the statute.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Roberta J Stevenson-McDermott	Counsel	—
Respondent	Four Palms Homeowners	Counsel	Araceli Rodriguez

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The petition was denied because the Petitioner failed to meet her burden of proving a violation of A.R.S. § 33-1258, as she had not made a proper written request for the documents since 2019, as required by the statute.

Why this result: Petitioner failed to make a request for records in writing as required by A.R.S. § 33-1258.

Key Issues & Findings

Access to Association Financial and Other Records

Petitioner alleged the HOA violated A.R.S. § 33-1258 by denying her access and copies of various financial records dating back to 2016. The HOA argued they provided financial summaries and offered in-person review, noting Petitioner failed to make a proper written request.

Orders: Petition denied. Respondent is directed to comply with A.R.S. § 33-1258 going forward upon a proper written request from Petitioner.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1258
A.R.S. § 33-1248
A.A.C. R2-19-119
A.R.S. § 32-2199 et seq.

Analytics Highlights

Topics: Financial Records, Written Request Requirement, HOA Governance, Condominium Act

Additional Citations:

A.R.S. § 33-1258
A.R.S. § 33-1248
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2222033-REL Decision – 967350.pdf

Uploaded 2026-04-24T11:47:58 (46.5 KB)

22F-H2222033-REL Decision – 982397.pdf

Uploaded 2026-04-24T11:48:03 (99.3 KB)

22F-H2222033-REL Decision – 967350.pdf

Uploaded 2026-01-23T17:45:19 (46.5 KB)

22F-H2222033-REL Decision – 982397.pdf

Uploaded 2026-01-23T17:45:21 (99.3 KB)

The hearing for the case of Roberta J. Stevenson-McDermott vs. Four Palms Homeowners (No. 22F-H2222033-REL) took place on June 27, 2022, before Administrative Law Judge (ALJ) Adam D. Stone of the Office of Administrative Hearings.

Key Facts and Main Issues

The dispute arose from the Petitioner’s allegation that the Respondent, Four Palms Homeowners Association (HOA), violated A.R.S. § 33-1258 concerning the disclosure of association financial and other records. Petitioner, a condominium unit owner, sought various financial documents from 2016 to the present, including yearly audit reports, budgets, 1099s, and bank statements, alleging increasing lack of transparency. The Petitioner testified that she had been denied the ability to review official records and that the Treasurer frequently made excuses as to why she could not view them.

Hearing Proceedings and Key Arguments

Petitioner Roberta J. Stevenson-McDermott appeared on her own behalf. She argued that as an owner, she was entitled to copies of these documents, and bank statements should be provided unless HOA and personal funds were co-mingled.

Respondent Four Palms Homeowners, represented by Araceli Rodriguez, Esq., maintained that the HOA had complied with its statutory duties. The Treasurer, Mario Selinas, testified that financial summaries (such as cash flow and income statements generated by the HOA software "Buildium") were provided to Petitioner upon request. Respondent argued that the full bank statements were withheld from distribution due to privacy concerns, specifically the potential for harassment of delinquent unit owners or the accidental disclosure of personal financial records, which is an exception carved out in A.R.S. § 33-1258(B).

Most Important Legal Points

The most critical legal point revolved around the interpretation and application of A.R.S. § 33-1258, which requires that financial records be made available for examination upon a request made in writing. Respondent contended that although the Petitioner had made verbal requests during meetings, she had never submitted a request in writing for the bank statements to the Treasurer. Respondent further noted that the HOA had offered Petitioner the opportunity to *examine* the bank statements in person, as permitted by the statute, but she failed to follow through.

Final Decision and Outcome

The ALJ issued a decision on July 8, 2022, finding that the Petitioner bore the burden of proving a violation by a preponderance of the evidence. The ALJ concluded that the Petitioner failed to establish that she was denied access to the financial records because she had not made the proper written request required by A.R.S. § 33-1258.

The Petitioner’s petition was therefore denied. The ALJ, however, issued a directive that the Respondent is ordered to comply with the requirements of A.R.S. § 33-1258 going forward, contingent upon receiving a proper written request from the Petitioner.

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

The Administrative Law Judge ruled against the homeowner partly because she failed to provide evidence of a written request. The decision emphasizes that the governing statute requires requests for examination to be in writing to be valid and enforceable.

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

records request
procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

homeowner rights
limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

In this case, the homeowner claimed she was denied access, but the judge found she failed to establish a denial because the preponderance of the evidence showed she had not made the required written request.

Alj Quote

Further, the preponderance of the evidence showed that she has failed to make any such request in writing as the statute requires. … Therefore, at this time, Petitioner failed to establish that she was denied access to the financial records.

Legal Basis

A.A.C. R2-19-119

Topic Tags

burden of proof
evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

fees
copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

The decision outlines statutory exceptions where books and records can be withheld, including privileged attorney communications, pending litigation, and personal financial or health records of individual members or employees.

Alj Quote

Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following: … Personal, health or financial records of an individual member of the association…

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

privacy
exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

The association shall have ten business days to fulfill a request for examination. … On request for purchase of copies … the association shall have ten business days to provide copies of the requested records.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

timelines
deadlines

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

burden of proof
legal standards

Case

Docket No: 22F-H2222033-REL
Case Title: Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date: 2022-07-08
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Questions

Question

Must I submit my request for HOA financial records in writing?

Short Answer

Yes, the statute explicitly requires that requests for examination of records be made in writing.

Detailed Answer

Alj Quote

A.R.S. § 33-1258 requires that association documents, with certain identified exceptions, 'shall be made reasonably available for examination by any member…in writing'.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

records request
procedural requirements

Question

Do I have the right to look through all HOA documents whenever I want?

Short Answer

No, homeowners do not have an unlimited right to peruse all association documents at will.

Detailed Answer

While the law requires records to be reasonably available, it does not grant an unfettered right to browse all documents. Specific procedures must be followed, and certain documents may be withheld.

Alj Quote

Nothing in the statute however, grants a condominium unit owner the right to peruse all of the association’s documents at will as some documents may properly be withheld.

Legal Basis

A.R.S. § 33-1258

Topic Tags

homeowner rights
limitations

Question

What happens if I cannot prove I sent a written request for records?

Short Answer

Your petition may be denied for failing to meet the burden of proof.

Detailed Answer

Alj Quote

Legal Basis

A.A.C. R2-19-119

Topic Tags

burden of proof
evidence

Question

Can the HOA charge me for copies of records?

Short Answer

Yes, the HOA is allowed to charge a fee for copies.

Detailed Answer

The statute permits the association to charge a fee per page for making copies of requested records, provided the request is for the purchase of copies.

Alj Quote

An association may charge a fee for making copies of not more than fifteen cents per page.

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

fees
copies

Question

Is the HOA allowed to withhold certain records from me?

Short Answer

Yes, specific categories of records, such as personal or privileged information, may be withheld.

Detailed Answer

Alj Quote

Legal Basis

A.R.S. § 33-1258(B)

Topic Tags

privacy
exemptions

Question

How long does the HOA have to fulfill my request for records?

Short Answer

The HOA has ten business days to fulfill a request for examination or to provide copies.

Detailed Answer

The statute mandates a ten-business-day timeframe for the association to comply with a written request for either examining records or purchasing copies.

Alj Quote

Legal Basis

A.R.S. § 33-1258(A)

Topic Tags

timelines
deadlines

Question

Who is responsible for proving that the HOA violated the law?

Short Answer

The homeowner (Petitioner) bears the burden of proof.

Detailed Answer

In an administrative hearing, it is the petitioner's responsibility to prove by a preponderance of the evidence that the HOA violated the specific statute.

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258.

Legal Basis

A.A.C. R2-19-119

Topic Tags

burden of proof
legal standards

Case

Docket No: 22F-H2222033-REL
Case Title: Roberta J Stevenson-McDermott vs. Four Palms Homeowners
Decision Date: 2022-07-08
Alj Name: Adam D. Stone
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Roberta J Stevenson-McDermott (petitioner)
Sean Embry (owner/witness)
Provided letter of support (not admitted as evidence)
Lenor Embry (owner/witness)
Provided letter of support (not admitted as evidence)
Philip Smith (owner/witness)
Provided letter of support (not admitted as evidence)
c. serrano (clerical staff)
Transmitted document for Petitioner

Respondent Side

Araceli Rodriguez (HOA attorney)
Yuma Law Firm (inferred)
Represented Four Palms Homeowners Association
Faye Burson (board member)
Four Palms Homeowners HOA
Vice President and witness (also listed as FA Buren)
Mario Salinas (board member)
Four Palms Homeowners HOA
Treasurer and witness (also listed as Mario Selenus)
Gilbert Sto (board member)
Four Palms Homeowners HOA
President
Lesie Blessing (board member)
Four Palms Homeowners HOA
Vice President (2016 board) and Secretary (current board)
Gail Hall (board member)
Four Palms Homeowners HOA
Fifth member
Linia Ohn (former board member)
Four Palms Homeowners HOA
Received payments in 2018 (also listed as Lenia own)
Scott Hoser (former board member)
Four Palms Homeowners HOA
Fifth member (2016 board)

Neutral Parties

Adam D. Stone (ALJ)
OAH
Louis Dettorre (ADRE Commissioner)
ADRE
Miranda Alvarez (Legal Secretary)
ADRE
Transmitted decision

Other Participants

Lisa Bon (former board member/owner)
Secretary (2016 board); provided letter of support to Petitioner

Stephen and Elizabeth Tosh

Posted on June 24, 2022 by [email protected]

Case Summary

Case ID	22F-H2222035-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2022-06-24
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof.
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Stephen and Elizabeth Tosh	Counsel	—
Respondent	Cimmarron Superstition HOA	Counsel	Christopher Hanlon

Alleged Violations

A.A.C. R2-19-119

Outcome Summary

The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof.

Why this result: Petitioners failed to appear at the hearing on June 24, 2022, and consequently did not present evidence to satisfy the burden of proof required under A.A.C. R2-19-119.

Key Issues & Findings

Petition Dismissal for Failure to Appear

Petition was dismissed because Petitioners failed to appear at the scheduled hearing and therefore presented no evidence to meet their burden of proof.

Orders: The petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.A.C. R2-19-119
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09

Analytics Highlights

Topics: dismissal, failure to appear, burden of proof

Additional Citations:

A.A.C. R2-19-119
A.R.S. §32-2199.02(B)
A.R.S. § 41-1092.09

Video Overview

Audio Overview

Decision Documents

22F-H2222035-REL Decision – 968715.pdf

Uploaded 2026-04-24T11:48:17 (33.0 KB)

22F-H2222035-REL Decision – 969556.pdf

Uploaded 2026-04-24T11:48:21 (48.5 KB)

22F-H2222035-REL Decision – 979812.pdf

Uploaded 2026-04-24T11:48:25 (72.2 KB)

22F-H2222035-REL Decision – 989050.pdf

Uploaded 2026-04-24T11:48:28 (39.3 KB)

22F-H2222035-REL Decision – 968715.pdf

Uploaded 2026-01-23T17:45:27 (33.0 KB)

22F-H2222035-REL Decision – 969556.pdf

Uploaded 2026-01-23T17:45:30 (48.5 KB)

22F-H2222035-REL Decision – 979812.pdf

Uploaded 2026-01-23T17:45:33 (72.2 KB)

22F-H2222035-REL Decision – 989050.pdf

Uploaded 2026-01-23T17:45:36 (39.3 KB)

This summary addresses the hearing proceedings, key facts, main legal points, and final administrative outcome of the matter involving Petitioners Stephen and Elizabeth Tosh versus Respondent Cimmarron Superstition HOA, identified as Case No. 22F-H2222035-REL, heard in the Office of Administrative Hearings (OAH).

Key Facts and Proceedings

The hearing in this matter was scheduled for June 24, 2022. The Petitioners, Stephen and Elizabeth Tosh, failed to appear at the scheduled hearing. Christopher Hanlon, Esq., appeared on behalf of the Respondent Cimmarron Superstition HOA.

During the proceeding, Mr. Hanlon informed the Administrative Law Judge (ALJ), Velva Moses-Thompson, that he had learned the previous night that his key witness had tested positive for COVID and could not physically attend. Although Mr. Hanlon suggested arguing his pending motion to dismiss, the ALJ waited approximately 15 minutes, allowing a grace period, as Petitioners were representing themselves in this specific OAH matter. The Petitioners did not contact the OAH to request a delay, appear in person, or file a request to appear telephonically.

Main Legal Issues and Rationale

The central legal point supporting the decision was the allocation of the burden of proof. Pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, the burden of proof rested solely upon the Petitioners.

By failing to appear at the hearing, the Petitioners did not present any evidence to support their claims. Consequently, the ALJ concluded that Petitioners failed to meet the required burden of proof.

Outcome and Final Decision

Based on the Petitioners' failure to appear and subsequent failure to meet the burden of proof, the Administrative Law Judge issued a Decision ordering that the petition is dismissed.

This Order was issued on June 24, 2022. The decision was declared binding on the parties unless a rehearing was granted pursuant to A.R.S. § 32-2199.04, requiring a request for rehearing to be filed with the Commissioner of the Department of Real Estate within 30 days.

The Petitioners subsequently filed a "Notice of action (appeal)" on July 21, 2022. However, the OAH determined on August 2, 2022, that these documents would not be considered because no further action could be taken on the matter by the Office of Administrative Hearings.

Questions

Question

Who is responsible for proving the claims in an HOA dispute hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.

Alj Quote

The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

burden of proof
legal standards

Question

What happens if I fail to attend my scheduled administrative hearing?

Short Answer

The petition will likely be dismissed because you failed to meet the burden of proof.

Detailed Answer

Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.

Alj Quote

By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.

Legal Basis

Failure to Prosecute / Default

Topic Tags

attendance
procedural requirements
dismissal

Question

Is there a grace period if I am late to my hearing?

Short Answer

The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.

Detailed Answer

In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.

Alj Quote

Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.

Legal Basis

Procedural Discretion

Topic Tags

attendance
procedural requirements

Question

What is the deadline for requesting a rehearing after a decision is issued?

Short Answer

You must file a request for rehearing with the Commissioner within 30 days of service of the order.

Detailed Answer

If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.

Alj Quote

Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

appeals
rehearing
deadlines

Question

Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?

Short Answer

No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.

Detailed Answer

Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.

Alj Quote

The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.

Legal Basis

Jurisdiction

Topic Tags

appeals
jurisdiction
procedural requirements

Question

Is the Administrative Law Judge's order automatically binding?

Short Answer

Yes, the order is binding on all parties unless a rehearing is officially granted.

Detailed Answer

The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

legal standards
enforcement

Case

Docket No: 22F-H2222035-REL
Case Title: Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
Decision Date: 2022-06-24
Alj Name: Velva Moses-Thompson
Tribunal: OAH
Agency: ADRE

Questions

Question

Who is responsible for proving the claims in an HOA dispute hearing?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

Alj Quote

The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

burden of proof
legal standards

Question

What happens if I fail to attend my scheduled administrative hearing?

Short Answer

The petition will likely be dismissed because you failed to meet the burden of proof.

Detailed Answer

Alj Quote

By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.

Legal Basis

Failure to Prosecute / Default

Topic Tags

attendance
procedural requirements
dismissal

Question

Is there a grace period if I am late to my hearing?

Short Answer

The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.

Detailed Answer

Alj Quote

Legal Basis

Procedural Discretion

Topic Tags

attendance
procedural requirements

Question

What is the deadline for requesting a rehearing after a decision is issued?

Short Answer

You must file a request for rehearing with the Commissioner within 30 days of service of the order.

Detailed Answer

If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.

Alj Quote

Legal Basis

A.R.S. § 41-1092.09

Topic Tags

appeals
rehearing
deadlines

Question

Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?

Short Answer

No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.

Detailed Answer

Alj Quote

The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.

Legal Basis

Jurisdiction

Topic Tags

appeals
jurisdiction
procedural requirements

Question

Is the Administrative Law Judge's order automatically binding?

Short Answer

Yes, the order is binding on all parties unless a rehearing is officially granted.

Detailed Answer

The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.

Alj Quote

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.

Legal Basis

A.R.S. § 32-2199.02(B)

Topic Tags

legal standards
enforcement

Case

Docket No: 22F-H2222035-REL
Case Title: Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
Decision Date: 2022-06-24
Alj Name: Velva Moses-Thompson
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Stephen Tosh (petitioner)
Elizabeth Tosh (petitioner)

Respondent Side

Christopher Hanlon (HOA attorney)
Childers Hanlon & Hudson, PLC

Neutral Parties

Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of Transmissions
vnunez (ADRE staff)
Arizona Department of Real Estate
Recipient of Transmissions
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of Transmissions
labril (ADRE staff)
Arizona Department of Real Estate
Recipient of Transmissions
c. serrano (staff)
Transmitted documents
Miranda Alvarez (legal secretary)
Transmitted Decision

Wesley T Chadwick v. Entrada Mountainside Homeowners Association

Posted on June 14, 2022 by [email protected]

Case Summary

Case ID	22F-H2221022-REL
Agency	—
Tribunal	—
Decision Date	2022-06-14
Administrative Law Judge	JC
Outcome	—
Filing Fees Refunded	—
Civil Penalties	—

Parties & Counsel

Petitioner	Wesley T Chadwick	Counsel	Pro se / Appeared on his own behalf
Respondent	Entrada Mountainside Homeowners Association	Counsel	Nick Eicher, Esq., Eadie Rudder, Esq. (Carpenter, Hazlewood, Delgado & Bolen, LLP)

Alleged Violations

No violations listed

Video Overview

Audio Overview

Decision Documents

22F-H2221022-REL Decision – 946305.pdf

Uploaded 2026-04-24T11:41:43 (47.7 KB)

22F-H2221022-REL Decision – 950368.pdf

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22F-H2221022-REL Decision – 957992.pdf

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22F-H2221022-REL Decision – 958039.pdf

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22F-H2221022-REL Decision – 960467.pdf

Uploaded 2026-04-24T11:41:57 (49.7 KB)

22F-H2221022-REL Decision – 977411.pdf

Uploaded 2026-04-24T11:42:01 (229.1 KB)

22F-H2221022-REL Decision – 946305.pdf

Uploaded 2026-01-23T17:42:41 (47.7 KB)

22F-H2221022-REL Decision – 950368.pdf

Uploaded 2026-01-23T17:42:45 (46.3 KB)

22F-H2221022-REL Decision – 957992.pdf

Uploaded 2026-01-23T17:42:50 (54.5 KB)

22F-H2221022-REL Decision – 958039.pdf

Uploaded 2026-01-23T17:42:55 (7.8 KB)

22F-H2221022-REL Decision – 960467.pdf

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22F-H2221022-REL Decision – 977411.pdf

Uploaded 2026-01-23T17:43:03 (229.1 KB)

Legal Analysis and Case Briefing: Wesley T. Chadwick vs. Entrada Mountainside Homeowners Association (No. 22F-H2221022-REL)

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and subsequent decision regarding the dispute between homeowner Wesley T. Chadwick (Petitioner) and the Entrada Mountainside Homeowners Association (Respondent/Association). The case centered on six violation notices issued between January and June 2021 regarding landscaping maintenance.

The Petitioner alleged that the Association exceeded its authority, issued vague and arbitrary notices, and failed to follow the procedural requirements outlined in the community's Covenants, Conditions, and Restrictions (CC&Rs). The Association contended it acted within its broad discretion to maintain community aesthetics and that the Petitioner failed to achieve full compliance.

On June 14, 2022, Administrative Law Judge (ALJ) Jenna Clark issued a decision granting the petition in part. The ALJ found that the Association violated CC&R Article 10.9 by failing to provide specific steps to cure violations and by citing incorrect sections of the CC&Rs. Consequently, the Association was ordered to pay a $500 pro-rata portion of the filing fee to the Petitioner.

Detailed Analysis of Key Themes

1. Specificity and the "Person of Ordinary Prudence"

A central theme of the dispute was the lack of clarity in the Association’s violation notices. The Association frequently used broad directives such as "PLEASE REMOVE WEEDS" or "fix rock area." The ALJ determined that these instructions were "vague, overbroad, and nondescript." The ruling emphasized that a "person of ordinary prudence" would not necessarily understand that "fix rock area" specifically required covering irrigation lines or removing a particular plant that the manager deemed a vine.

2. Misapplication of Governing Documents

The analysis revealed a significant technical error in the Association’s enforcement process. All six violation letters cited Article 4.5, which the ALJ found pertains exclusively to "Construction Activities." The correct section for landscaping maintenance was Article 4.4. The ALJ concluded that issuing notices under the incorrect article failed to provide the Petitioner with proper legal notice of the violations.

3. The "Moving Goalposts" of Compliance

The Petitioner argued that the Association engaged in a pattern of "moving the goalposts." After reaching a settlement in March 2021 to pay a fine and resolve the initial weed issues, the Petitioner received a fourth notice (dated prior to the settlement) introducing the new "fix rock area" requirement. The Petitioner contended that this new issue was treated as a continuation of previous violations (carrying a $100 fine) rather than a new issue requiring a fresh warning, effectively depriving him of the opportunity to cure without penalty.

4. Subjective vs. Objective Enforcement

Testimony from the Community Manager, Danielle Miglio, highlighted the subjective nature of the Association's inspections. Miglio performed unannounced drive-throughs twice monthly from a vehicle. She admitted she did not measure how much irrigation line was exposed, stating only that if she could see a "black line" from the street with no plant attached, it constituted a violation. The Petitioner countered this by providing photographic evidence (Exhibit 15) of exposed irrigation lines at the residence of the Board Vice President, who testified she had never received a violation notice for such an issue.

Chronology of Violation Notices (2021)

Date	Notice Level	Stated Violation	Outcome/Action
Jan 21	Property Inspection	Remove Weeds	Petitioner hired contractors to remove dead cacti and weeds.
Feb 09	Second Notice	Remove Weeds	$50 fine assessed.
Feb 25	Third Notice	Remove Weeds	$100 fine assessed.
Mar 15	Fourth Notice	Remove Weeds, "fix rock area"	$100 fine; first mention of "rock area."
Mar 30	Fifth Notice	Remove Weeds, "fix rock area"	$100 fine; OPM later provided circled photos of concern.
Jun 16	Sixth Notice	Remove Weeds	$100 fine; related to a specific plant the HOA called a "vine."

Important Quotes with Context

On Notice Specificity

ALJ Jenna Clark: "The Association’s directive to 'PLEASE REMOVE WEEDS' or 'fix rock area' would not indicate to a person of ordinary prudence… to cover up exposed irrigation lines, remove a plant believed to be a vine, fill in holes, and/or make the lawn generally tidy and pleasing to the eye." * Context: Found in the Conclusions of Law, this explains why the ALJ ruled the Association violated the notice requirements of the CC&Rs.

On the Nature of Inspections

Danielle Miglio (Manager): "I stay in my vehicle… This is private property. It's trespassing… if I can see it from my vehicle, which is in the middle of the street, and I can see the black line… that is typically when I would say I'm going to give them a violation." * Context: Testimony explaining how OPM determines what constitutes an "unsightly" condition or "debris."

On Compliance Frustrations

Wesley T. Chadwick (Petitioner): "We feel that because of the lack of specificity of the notices, the lack of communication, exceeding the authority and arbitrarily forcing it… the gold posts were constantly being moved." * Context: From the Petitioner's closing argument, summarizing the claim that the HOA made it impossible to achieve full compliance.

On Board Policy

Cynthia Ecker (Board VP): "Typically the first thing [we] do is we'll ask property manager if there's been a waving of fines in the past. Like I said, it's a onetime courtesy." * Context: Explaining the Board's deliberation process for fine waiver requests.

Actionable Insights

For Homeowners' Associations (HOAs)

Precision in Documentation: Violation notices must include "specific steps" to cure. Using vague terms like "fix rock area" is insufficient. Providing circled photographs at the first notice rather than after several fines can prevent legal challenges.
CC&R Fidelity: Ensure enforcement letters cite the exact article and section relevant to the violation. Citing a "Construction" article for a "Landscaping" issue can render the notice moot in an administrative hearing.
Consistent Enforcement: Evidence of "arbitrary enforcement"—where board members have similar issues on their property but face no violations—weakens the Association's standing.
Settlement Transparency: When reaching a settlement for past fines, the Association should clearly disclose if there are pending notices currently in the mail to avoid "bad faith" allegations.

For Homeowners

Utilize Appeal Rights: The Petitioner's failure to appeal the early notices (Letters 1-3) was noted by the ALJ, though it did not ultimately defeat his claim regarding the later letters.
Document Remediation: Keeping receipts (e.g., the Petitioner’s $350 cactus removal and $100 weeding receipts) provides essential evidence of "good faith" attempts to comply.
Request Specificity: If a notice is vague, homeowners should immediately request written clarification or a meeting before fines escalate.
Comparative Evidence: Identifying similar conditions on other properties within the association can support a claim of arbitrary or capricious enforcement.

Final Decision Order

The Administrative Law Judge ordered the following:

Partial Grant: The petition was granted regarding the violation of Article 10.9 (Notice of Violation).
Partial Denial: The petition was denied regarding violations of Article 4.5, 10.1, and 10.10.
Restitution: The Association was ordered to pay $500.00 to the Petitioner within 30 days of the order (June 14, 2022).

Study Guide: Chadwick vs. Entrada Mountainside Homeowners Association

This study guide provides a comprehensive overview of the administrative hearing case Wesley T. Chadwick vs. Entrada Mountainside Homeowners Association (No. 22F-H2221022-REL). It synthesizes the procedural history, core legal arguments, and the final judicial determination regarding the enforcement of community Covenants, Conditions, and Restrictions (CC&Rs).

I. Key Concepts and Case Overview

The Parties

Petitioner: Wesley T. Chadwick, a homeowner in the Entrada Mountainside subdivision since November 2016.
Respondent: Entrada Mountainside Homeowners Association (the Association), governed by a Board of Directors and managed by Oasis Community Management (OPM).

Core Legal Framework: The CC&Rs

The dispute centered on the interpretation and application of specific articles within the Association’s recorded CC&Rs:

Article 4.4 (Maintenance of Landscaping): Requires owners to keep lots "neatly trimmed, cultivated and free from trash, weeds and unsightly material."
Article 4.5 (Nuisances): Prohibits weeds, dead trees, rubbish, or debris that render a property "unsanitary, unsightly, offensive, or detrimental." The judge later determined this article specifically pertained to construction activities.
Article 10.1 (Enforcement): Grants the Association the right to enforce project documents.
Article 10.9 (Notice of Violation): Requires the Association to provide a brief description of the nature of the violation and a "statement of the specific steps" required to cure it.
Article 10.10 (Laws and Regulations): Declares that violations of state or local laws are also violations of the CC&Rs.

The Procedural Timeline (2021-2022)

January – February 2021: Petitioner receives three violation notices for weeds and dead plants. Petitioner pays $450 to remove cacti and weeds.
March 2021: Petitioner reaches a settlement with OPM to waive a $100 fine if compliant for 90 days. However, a fourth notice is issued citing a new issue: "fix rock area."
April – June 2021: Petitioner receives fifth and sixth notices. Issues include exposed irrigation lines and a plant OPM identifies as a "vine/weed."
September 2021: The Association Board denies Petitioner’s appeal in executive session.
October 2021: Petitioner files a petition with the Arizona Department of Real Estate (ADRE).
May 25, 2022: A formal administrative hearing is held.
June 14, 2022: Administrative Law Judge (ALJ) Jenna Clark issues the final decision.

II. Short-Answer Practice Questions

1. What specific phrase did the Association include in the fourth and fifth notices that was not present in the first three?

Answer: "Fix rock area."

2. According to the testimony of Danielle Miglio (OPM Manager), what did "fix rock area" specifically require the Petitioner to do?

Answer: It required the Petitioner to cover exposed irrigation lines with granite and fill in the holes left by the removal of dead cacti.

3. Why did the Petitioner argue that the fourth violation notice was issued in "bad faith"?

Answer: Because the fourth notice (dated March 15) was issued just three days before the Petitioner reached a settlement agreement (March 18) with the Association, which he believed resolved all outstanding issues.

4. What was the "secret third option" proposed by the ALJ regarding the Petitioner's subpoena for documents on the day of the hearing?

Answer: The Petitioner could choose to move forward with the case immediately and then continue the matter to a later date only if the substance of the missing documents became necessary during testimony.

5. On what grounds did the ALJ rule that the Association violated Article 10.9?

Answer: The Association failed to provide "specific steps" to cure the violations. Directives like "PLEASE REMOVE WEEDS" or "fix rock area" were deemed too vague to inform a person of ordinary prudence that they needed to cover irrigation lines or remove a specific plant.

6. What was the judge's finding regarding the Association's use of Article 4.5 in the violation letters?

Answer: The judge found Article 4.5 inapplicable because it pertains solely to construction activities. The Association should have cited Article 4.4.

III. Essay Prompts for Deeper Exploration

The Requirement of Specificity in Administrative Notice:

Analyze the conflict between the Association’s use of broad "boilerplate" language in violation notices and the requirements of Article 10.9. How does the failure to provide specific curative steps (e.g., "cover irrigation lines" vs. "fix rock area") impact a homeowner's right to due process and their ability to reach compliance?

Arbitrary and Capricious Enforcement:

During the hearing, Board Vice President Cynthia Ecker admitted she had exposed irrigation lines on her property but had never received a violation. Discuss the legal implications of this testimony in the context of the Petitioner’s claim of "arbitrary and capricious" enforcement. Why did the judge ultimately conclude the Petitioner did not sustain the burden of proof for this specific allegation (Article 10.10) despite this testimony?

The Role of Settlement and Good Faith:

The Petitioner believed a "settlement" had been reached on March 18, 2021. Evaluate the Association's actions in issuing a fourth notice dated March 15 without mentioning it during the settlement negotiations. Discuss whether the Association’s behavior aligns with the "maintenance of harmony" typically intended by community governing documents.

IV. Glossary of Important Terms

Term	Definition
Administrative Law Judge (ALJ)	A judge who trie cases and makes determinations for administrative agencies (in this case, the Office of Administrative Hearings).
CC&Rs	Covenants, Conditions, and Restrictions; the governing legal documents that dictate the rules for a planned community.
Continuance	A postponement of a hearing or trial to a later date.
Exigency	An urgent need or demand; used in the text to describe the only condition under which further continuances would be granted.
Minute Entry	A brief record of the proceedings of a court or the steps taken in a case.
Petitioner	The party who presents a petition to a court or tribal (Wesley T. Chadwick).
Prima Facie	Based on the first impression; accepted as correct until proved otherwise.
Respondent	The party against whom a petition is filed (Entrada Mountainside HOA).
Soft Costs	Costs mentioned by the Board (e.g., administrative fees) that the Association often waives as a "one-time courtesy" if a homeowner reaches compliance.
Subpoena Duces Tecum	A court order requiring a witness to bring specific documents or evidence to a court or hearing.
Tribunal	A court of justice or an administrative body with the authority to adjudicate disputes.
Vacate	To cancel or render a previous legal proceeding or hearing void.

HOA Disputes: Lessons in Specificity and Fairness from Chadwick vs. Entrada Mountainside

1. Introduction: The Battle for the Front Yard

For many homeowners, few experiences are as universally frustrating as receiving a vague violation notice from their Homeowners Association (HOA). What begins as a simple directive to "remove weeds" can rapidly deteriorate into a cycle of escalating fines and administrative litigation. In the case of Wesley T. Chadwick vs. Entrada Mountainside Homeowners Association, a standard landscaping dispute became a crucial legal test: exactly how specific must an HOA be when demanding a homeowner perform repairs?

This conflict, which was ultimately decided by an Administrative Law Judge (ALJ) at the Arizona Office of Administrative Hearings, offers a masterclass in procedural due process. It examines whether generic commands like "fix rock area" meet the legal and contractual standards required of an association. As a community association advocate, I will break down the ALJ’s findings to show why specificity is not just a courtesy—it is a legal necessity.

2. The Paper Trail: A Timeline of Escalating Notices

The dispute between Mr. Chadwick and the Association spanned the first half of 2021. While the homeowner made significant efforts to comply, the Association continued to issue fines based on increasingly ambiguous requirements.

Date of Notice	Alleged Violation/Directive	Fine/Action Taken
January 25, 2021	Remove weeds and dead trees/plants (Article 4.5).	Initial Warning Notice.
February 9, 2021	"Please remove weeds."	$50.00 Fine.
February 25, 2021	"Please remove weeds."	$100.00 Fine.
March 15, 2021	Added new directive: "fix rock area."	$100.00 Fine.
March 30, 2021	"Remove weeds" and "fix rock area."	$100.00 Fine; Legal action threatened.
June 16, 2021	"Please remove weeds" (targeting a specific vine).	$100.00 Fine; Legal action threatened.

The turning point occurred in March 2021. As the Association transitioned from the specific issue of "weeds" to the subjective and vague command to "fix rock area," the homeowner was left guessing at the Association’s expectations.

3. The Resident's Defense: "Moving the Goalposts"

Petitioner Chadwick successfully dismantled the Association’s lack of procedural due process by highlighting a pattern of "moving the goalposts." His primary arguments included:

Failure of Specificity (Article 10.9): Chadwick argued the Association violated Article 10.9 of the CC&Rs, which mandates a "statement of the specific steps" required to cure a violation. He contended that "fix rock area" failed this contractual standard.
Good Faith Compliance and Bad Faith Negotiation: Chadwick spent $450 in February to remove dead cacti and weeds. On March 18, he reached a settlement with the Association to pay a $50 fine to resolve the matter. However, the Association acted in apparent bad faith by negotiating this settlement while already having mailed a new $100 fine on March 15—a fact the Association did not disclose during settlement talks.
Arbitrary Enforcement: In a "smoking gun" moment during the hearing, Chadwick pointed to the uneven application of the rules. Most notably, Cynthia Ecker, a Board member of 20 years and current Vice President, admitted under cross-examination that she had uncovered irrigation lines in her own yard but had never received a notice or a fine.

4. The Association’s Stance: Broad Authority and "Unsightly" Conditions

The Association, represented by Community Manager Danielle Miglio and the Board Vice President, justified their enforcement actions through the following arguments:

Broad Discretionary Power: They argued that Article 4.5 granted the Association the exclusive right to determine what constitutes an "unsightly" or "offensive" condition.
The "Incomplete Job" Theory: The Board contended that when Chadwick removed the dead cacti, he created a new "debris" issue by leaving holes and exposed irrigation lines. They argued this was an extension of the original maintenance failure.
Sufficiency of Notice: The Association maintained that "Remove Weeds" was a sufficient directive, asserting that it is the homeowner’s responsibility to cross-reference the CC&Rs or contact the office for further clarity.

5. The ALJ’s Verdict: Why Specificity Matters

The ALJ’s decision (No. 22F-H2221022-REL) provides a sharp critique of the Association's procedural failures. The Judge granted the petition in part, based on two critical legal errors:

The "Prudent Person" Standard The Judge ruled that a person of "ordinary prudence" could not be expected to be a mind-reader. A homeowner should not have to guess that the vague command to "fix rock area" actually meant they needed to "cover irrigation lines, fill holes, and remove a specific plant the Board labeled a vine." The fact that the Association eventually had to send a photo with circled areas to explain the violation proved that the written notices were insufficient.

The Procedural Failure: Article 4.4 vs. 4.5 In a significant blow to the Association’s legal standing, the ALJ found that the HOA cited the wrong Article in every notice. The Association relied on Article 4.5, which pertains solely to construction activities and nuisances. Landscaping issues fall under Article 4.4. Citing the wrong Article isn't a mere typo; it is a fundamental failure to provide proper notice, rendering the enforcement action contractually deficient.

6. Final Outcome and Financial Impact

While the Judge did not find the Association’s actions entirely arbitrary, the petition was granted regarding the violation of Article 10.9. The HOA was held accountable for the financial burden placed on the homeowner to seek justice.

### Final Order The Association was ordered to pay $500.00 to the Petitioner as a pro-rata portion of the filing fee, to be paid within 30 days of the order.

7. Key Takeaways for Homeowners and HOA Boards

For Homeowners

Demand Specificity: If a notice is vague, you have a contractual right to request "specific steps to cure." Reference your governing documents (like Article 10.9 in this case) to force the Board to define the violation.
Expose Inconsistency: Document other properties with similar "violations." As the Ecker testimony showed, proving that Board members are exempt from the rules they enforce is a powerful defense against arbitrary fines.
Appeal Early: Do not let fines accumulate while hoping the issue will disappear. Use the formal appeal process to create a paper trail of your compliance efforts.

For HOA Boards

Cite Correctly or Lose: Citing a "Nuisance" clause for a "Landscaping" issue is a procedural error that can void your fines in court. Ensure your management team is citing the exact, applicable section of the CC&Rs.
Eliminate Subjectivity: Phrases like "fix area" are legally unenforceable. Your notices must be descriptive (e.g., "Cover 4 inches of exposed black irrigation line near the front walkway with matching granite").
Negotiate in Good Faith: Settling past fines while a new notice is already in the mail is a fast track to being labeled a "bad faith" actor by a judge.

8. Administrative Note

Administrative Law proceedings in these matters follow a strict statutory timeline. Following the hearing, the ALJ has 20 days to draft a recommendation for the Commissioner of the Arizona Department of Real Estate, who then has 30 days to finalize the order. Parties should be aware that while a "rehearing" can be requested within 30 days of the final order, it is not a "second bite at the apple." A rehearing is only granted under specific hurdles, such as proving the discovery of new evidence that was not available at the time of the original hearing.

Case Participants

Petitioner Side

Wesley Todd Chadwick (Petitioner)

Respondent Side

Nick Eicher (Counsel for Respondent)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Eadie Rudder (Counsel for Respondent)
Carpenter, Hazlewood, Delgado & Bolen, LLP
Danielle Christine Miglo (Witness and Manager)
Oasis Community Management
Cynthia Marie Ecker (Witness and Board Vice President)
Entrada Mountainside Homeowners Association
Mara Jolie (Assistant Manager)
Oasis Property Management

Neutral Parties

Jenna Clark (Administrative Law Judge)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
Miranda Alvarez (Legal Secretary)
Office of Administrative Hearings

Asmaa Kadhum v. Goldcrest Patio Homes Condominium Association

Posted on June 7, 2022 by [email protected]

Case Summary

Case ID	22F-H2222028-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2022-10-11
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Asmaa Kadhum	Counsel	—
Respondent	Goldcrest Patio Homes Condominium Association	Counsel	—

Alleged Violations

A.R.S. § 33-1256

Outcome Summary

The Administrative Law Judge denied the petition, concluding that Petitioner failed to prove a violation of A.R.S. § 33-1256 because the specific issue raised—a complaint about a recorded lien—was moot, as the lien had been released, and no current enforcement action regarding the disputed legal fees was pending.

Why this result: The ALJ determined that absent a recorded lien or pending enforcement action, the Office of Administrative Hearings lacked jurisdiction to address the reasonableness or accuracy of the disputed legal fees under the specific statute cited (A.R.S. § 33-1256).

Key Issues & Findings

Requesting to Waive/or Adjust Unreasonable Collection Fees.

Petitioner sought to waive or adjust unreasonable collection fees and attorney fees ($2,351.40 or $3,500.00) charged by the HOA related to a lien placed on their unit, which was later released because it was allegedly based on incorrect amounts.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1256
A.A.C. R2-19-119

Analytics Highlights

Topics: HOA lien, Collection fees, Attorney fees, Statutory violation, Jurisdiction, Rehearing

Additional Citations:

A.R.S. § 33-1256
A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

22F-H2222028-REL Decision – 1005275.pdf

Uploaded 2026-04-24T11:43:34 (101.7 KB)

22F-H2222028-REL Decision – 1009064.pdf

Uploaded 2026-04-24T11:43:38 (37.4 KB)

22F-H2222028-REL Decision – 1_aamg stmt.pdf

Uploaded 2026-04-24T11:43:41 (21.1 KB)

22F-H2222028-REL Decision – 2_email from silvia regarding late fees.pdf

Uploaded 2026-04-24T11:43:44 (457.3 KB)

22F-H2222028-REL Decision – 3_email regarding plumbing repair from laweyer.pdf

Uploaded 2026-04-24T11:43:48 (983.8 KB)

22F-H2222028-REL Decision – 4_ledger dec 2021.pdf

Uploaded 2026-04-24T11:43:51 (96.5 KB)

22F-H2222028-REL Decision – 5_letter from lawyer.pdf

Uploaded 2026-04-24T11:43:55 (138.0 KB)

22F-H2222028-REL Decision – 7_petition response.pdf

Uploaded 2026-04-24T11:43:59 (25.0 KB)

22F-H2222028-REL Decision – 975165.pdf

Uploaded 2026-04-24T11:44:04 (104.8 KB)

22F-H2222028-REL Decision – HO22-22028_ElectronicNotice_Hearing.pdf

Uploaded 2026-04-24T11:44:07 (93.3 KB)

22F-H2222028-REL Decision – HO22-22028_ElectronicNotice_Petition.pdf

Uploaded 2026-04-24T11:44:14 (122.6 KB)

22F-H2222028-REL Decision – HO22-22028_HearingScheduled.pdf

Uploaded 2026-04-24T11:44:19 (129.6 KB)

22F-H2222028-REL Decision – HO22-22028_MC_Pet.ResponseToRespondentsResponseToPetition.pdf

Uploaded 2026-04-24T11:44:23 (132.2 KB)

22F-H2222028-REL Decision – HO22-22028_MC_Response&ADRERequest.pdf

Uploaded 2026-04-24T11:44:27 (133.2 KB)

22F-H2222028-REL Decision – HO22-22028_Notice_Hearing.pdf

Uploaded 2026-04-24T11:44:30 (1101.1 KB)

22F-H2222028-REL Decision – HO22-22028_Notice_Petition.pdf

Uploaded 2026-04-24T11:44:36 (3755.5 KB)

22F-H2222028-REL Decision – HO22-22028_Payment.pdf

Uploaded 2026-04-24T11:44:40 (221.2 KB)

22F-H2222028-REL Decision – HO22-22028_Pet.ResponseTo.pdf

Uploaded 2026-04-24T11:44:48 (5499.9 KB)

22F-H2222028-REL Decision – HO22-22028_Petition.pdf

Uploaded 2026-04-24T11:44:57 (5828.4 KB)

22F-H2222028-REL Decision – HO22-22028_Response_Petition.pdf

Uploaded 2026-04-24T11:45:00 (125.4 KB)

Briefing Document: Dispute Between Asmaa Kadhum and Goldcrest Patio Homes Condominium Association

Executive Summary

This document synthesizes the key facts and legal proceedings concerning a dispute between homeowner Asmaa Kadhum (Petitioner) and the Goldcrest Patio Homes Condominium Association (Respondent). The central conflict is the Petitioner’s refusal to pay approximately $3,500 in legal fees that the Respondent incurred during collection efforts for past-due assessments.

The dispute escalated when the Respondent, on June 15, 2020, filed a lien for $2,199.00 against the Petitioner’s property. The Petitioner contested the lien’s validity, citing numerous accounting errors. Subsequently, the Respondent’s own legal counsel advised releasing the lien on November 13, 2020, acknowledging it contained “invalid late fee charges” and was released to protect the association from a “potential false lien claim.”

Despite the release of the lien, the Respondent continued to demand payment for the legal fees. The Petitioner filed a petition with the Arizona Department of Real Estate (ADRE) on January 12, 2022, alleging a violation of A.R.S. § 33-1256 and arguing the collection fees were unreasonable.

Following a hearing and a rehearing, the Administrative Law Judge (ALJ) ultimately ruled in favor of the Respondent. The decision was based on a critical jurisdictional issue: because there was no active lien on the property at the time the petition was filed or heard, there was no existing violation of the cited statute for the Office of Administrative Hearings (OAH) to adjudicate. The ALJ concluded that the OAH lacks the authority to issue a declaratory judgment on the reasonableness of the fees in the absence of a pending enforcement action by the association. The underlying liability for the legal fees remains an unresolved issue between the parties.

Parties Involved

Name/Entity

Key Representative(s)

Petitioner

Asmaa Kadhum

Asmaa Kadhum, Mazin Ahmed Al-Salih

Respondent

Goldcrest Patio Homes Condominium Association

Jerry Latschar (Vice President), Cammy Bowring

Chronology of Key Events

Prior to May 1, 2019

Petitioner accrued unpaid assessments and fees totaling $1,375.00 under previous management (AAMG).

April 21, 2020

Respondent sent a notice to Petitioner demanding payment of $1,435.00 in past-due assessments and fees within 30 days.

April 30, 2020

Petitioner responded via email, stating it was “not a good timing for collections” due to the pandemic and requested late fees be removed.

June 15, 2020

Respondent recorded a Notice of Lien on Petitioner’s unit for an amount of $2,199.00.

August 7, 2020

Respondent’s attorney sent a notice stating the total amount due, including legal fees, was now $2,504.00.

September 10, 2020

Petitioner notified Respondent that the lien amount was incorrect and constituted an “improper lien.”

November 13, 2020

Respondent recorded a Release of Lien against the Petitioner’s unit.

December 10, 2020

Respondent’s attorney explained in a letter that the lien was released because it “included late fee charges that were found to be invalid.”

Post-Release

Respondent maintained that Petitioner still owed approximately $3,500.00 in legal fees from the collection process.

December 2021

An account ledger showed a balance of $2,685.40.

January 12, 2022

Petitioner filed a petition with the ADRE (Case No. HO22-22/028) alleging a violation of A.R.S. § 33-1256.

April 4, 2022

An administrative hearing was held before ALJ Tammy L. Eigenheer.

October 11, 2022

Following a rehearing, the ALJ issued a final decision, finding no violation of the cited statute and dismissing the petition.

October 27, 2022

Petitioner filed a miscellaneous motion, which the OAH did not consider, stating it could take no further action on the matter.

Analysis of the Core Dispute

The Disputed Legal Fees

The primary point of contention is the legal fees assessed to the Petitioner’s account for the collection of past-due assessments.

• Respondent’s Claim: The Respondent asserts that legal fees of approximately $3,500.00 are owed. However, during testimony, Respondent’s representative, Mr. Latschar, was “uncertain where the $3,500.00 total originated.”

• Conflicting Evidence: The amount claimed is inconsistent with other documents. Invoices from counsel submitted after the initial hearing showed total charges of only 661.50∗∗attributabletothePetitioner′smatterbetweenAugustandNovember2020.AledgerfromDecember2021showedatotaloutstandingbalanceof∗∗2,685.40, which included legal fees.

The Improper Lien

A foundational element of the Petitioner’s argument is the improper nature of the lien filed by the Respondent.

• Filing and Release: A lien for $2,199.00 was recorded on June 15, 2020, and officially released on November 13, 2020.

• Reason for Release: The Respondent’s attorney stated the release was necessary to “protect [Respondent] and our firm from a potential false lien claim” because the original notice “included late fee charges that were found to be invalid.” The Respondent’s response to the petition also states, “the lawyer was forced to release the lien” because of “errors” related to posting late fees.

• Varying Amounts: The Petitioner highlighted the inconsistent amounts demanded throughout the process:

◦ $1,435.00 in the April 2020 notice.

◦ $2,199.00 in the June 2020 lien filing.

◦ $2,504.00 in the August 2020 attorney notice.

Petitioner’s Position and Arguments

The Petitioner contends they should not be held responsible for legal fees stemming from the Respondent’s flawed collection process.

• Fees are Unreasonable: The core argument is that charging legal fees for an “invalid” lien based on “false statements and invoices” is unreasonable and unacceptable.

• Lack of Cooperation: The Petitioner claims to have made multiple attempts to discuss the matter and arrange payments, sending meeting requests in December 2021 that were allegedly ignored or cancelled.

• Principle of Fairness: The Petitioner argued, “if someone files a claim then realized that his filing process was based on wrong documents, and then dropped the claim himself, should the other party be responsible for the legal fees for that.”

Respondent’s Position and Arguments

The Respondent maintains that the legal fees are a legitimate debt resulting from the Petitioner’s failure to pay assessments.

• Legal Action was Necessary: The Respondent initiated legal action because the Petitioner had not paid assessments for “nearly a year” and had stated they would not make back payments until late fees were waived.

• Lien Release vs. Debt: The Respondent argues that the release of the lien “doesn’t release the balance owing, just the lien at the county.” The legal fees incurred to collect the past assessments remain due.

• Petitioner Contributed to Costs: The Respondent claims the Petitioner “proceeded to force the attorney to review the ledger, which caused further legal fees to be charged.”

Administrative Hearing and Legal Rulings

Case Details and Petition

• OAH Docket: 22F-H2222028-REL

• ADRE Case: HO22-22/028

• Alleged Violation: A.R.S. § 33-1256, which governs the placement of liens for assessments and requires that they be for “reasonable collection fees and for reasonable attorney fee.”

• Relief Sought: An order to “Waive / or Adjust Unreasonable Collection Fees.”

Administrative Law Judge’s Findings and Conclusions

Across both the initial hearing and the rehearing, the ALJ’s decision was consistent and based on a narrow interpretation of the OAH’s jurisdiction under the cited statute.

• Primary Finding: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1256.

• Jurisdictional Limitation: The ALJ repeatedly emphasized that her authority was limited to evaluating existing liens. Since the lien was released in November 2020, well before the petition was filed in January 2022, there was no active lien to assess for reasonableness.

• Corrective Action: The ALJ stated that by releasing the improper lien, the Respondent had “fixed” the past error, removing it from the OAH’s purview.

• No Declaratory Judgment: The decision clarified that the OAH has “no jurisdiction to issue declaratory judgments.” It could not rule on whether the legal fees themselves were reasonable as a standalone issue, only whether an active lien containing those fees was compliant with statute.

• No Enforcement Action: The decision noted that at the time of the hearing, the Respondent was not pursuing any enforcement action (such as filing a new lien or foreclosure) to collect the disputed fees. The fees existed only as “a number on a ledger.”

Salient Quotes

• Petitioner: “Why why we have to pay for for them mistakes? That’s totally issue.”

• Petitioner: “$3,377 legal fee for placing lean is not reasonable or acceptable.”

• Respondent: “they caused us to obtain legal counsel by not paying their bills for almost a year… It doesn’t release the balance owing, just the lien at the county.”

• Respondent’s Attorney (via letter): “…because the original Notice of Lien ‘included late fee charges that were found to be invalid . . . a Release of Lien was recorded in order to protect [Respondent] and our firm from a potential false lien claim.'”

• Administrative Law Judge: “There is no lean on your property. I can’t say the lean is wrong because there is no lean at this point.”

• Administrative Law Judge: “I can’t I can’t say that what they did in the past was wrong because they have fixed it by releasing the lean.”

• Administrative Law Judge (Decision): “the exact amount of legal fees attributable to Petitioner is not relevant in this matter as there were no pending enforcement actions. This is not to say Petitioner may not be entitled to raise this question in a separate venue.”

Study Guide: Case No. 22F-H2222028-REL

Short-Answer Quiz

Instructions: Based on the provided source materials, answer the following questions in 2-3 complete sentences.

1. Identify the Petitioner and the Respondent in this case and describe the nature of their dispute.

2. What specific Arizona Revised Statute did the Petitioner allege the Respondent violated, and what was the core of this allegation?

3. On what date did the Respondent file a Notice of Lien against the Petitioner’s property, what was the amount, and why was this lien later released?

4. According to the Administrative Law Judge (ALJ), why did the Office of Administrative Hearings lack the jurisdiction to rule on the reasonableness of the legal fees sought by the Respondent?

5. How did the Petitioner respond to the Respondent’s April 21, 2020 notice of past-due assessments?

6. What action did the Respondent’s law firm state it was prohibited from taking until May 21, 2020, and what was the legal basis for this restriction?

7. After the initial hearing, what was the total amount of legal fees supported by the four invoices submitted by Mr. Latschar for the period between August 1 and November 30, 2020?

8. The Petitioner sought to sell their property and requested a statement from the Respondent showing a zero balance. What was the central point of contention preventing this?

9. In December 2021, the Petitioner attempted to schedule a meeting with the board to dispute a fee. What was the outcome of these requests?

10. What was the final outcome of the case as stated in the Administrative Law Judge’s decision on October 11, 2022?

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Answer Key

1. The Petitioner is Asmaa Kadhum, a condominium owner. The Respondent is the Goldcrest Patio Homes Condominium Association. Their dispute centers on the reasonableness of approximately $3,500 in legal fees the Association charged to Kadhum for collection efforts related to past-due assessments, particularly after the Association filed and then released an invalid lien on the property.

2. The Petitioner alleged a violation of A.R.S. Title 33, Chapter 16, Section 33-1256. The core of the allegation was that the Association was charging unreasonable collection and attorney fees, which is a standard addressed by this statute when an HOA places a lien against a unit.

3. The Respondent filed a Notice of Lien for $2,199.00 on June 15, 2020. The lien was later released on November 13, 2020, because, as the Respondent’s attorney noted, the original Notice of Lien “included late fee charges that were found to be invalid,” and the release was recorded to protect the Association and the law firm from a potential false lien claim.

4. The ALJ stated that the court could not rule on the reasonableness of the fees because there was no longer a recorded lien against the property. The petition was filed under A.R.S. § 33-1256, which governs liens, and since the lien had been released, there was no active violation or enforcement action for the court to evaluate or remedy. The OAH has no jurisdiction to issue declaratory judgments on such matters in the absence of an active enforcement action.

5. In an email dated April 30, 2020, the Petitioner responded to the notice by stating it was “not a good timing for collections” due to the pandemic. The Petitioner disputed the total amount, claiming late fees should be removed, and stated they were planning to pay the whole amount “after this pandemic goes away.”

6. In a May 5, 2020 email, the law firm, Mulcahy Law Firm, P.C., stated that pursuant to state law, it could not proceed with collection efforts until 30 days had passed from the April 21 notice. This meant the file could not be turned over to their office for collection until after May 21, 2020, giving the owner time to pay or arrange a payment agreement.

7. According to the ALJ’s decision from the initial hearing, the four invoices submitted by Mr. Latschar after the hearing showed total charges of $661.50 attributable to the Petitioner’s matter between August 1, 2020, and November 30, 2020.

8. The Petitioner wanted a zero-balance statement to sell the property, arguing all assessments had been paid. The Respondent refused to provide this, contending that while the assessments were paid, there was still an outstanding balance for legal fees incurred during the collection process, which the Petitioner disputed as unreasonable and resulting from the Respondent’s own mistakes.

9. The Petitioner sent multiple meeting requests in December 2021 to dispute a fee of $3,377. The Respondent ultimately canceled the meeting with the homeowner and held one with only the board members, citing COVID-19 and the use of Zoom, even though previous meetings had been held via Zoom.

10. In the final decision dated October 11, 2022, the ALJ concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1256. This was because there was no recorded lien against the property at the time of the petition or hearings, and thus no active enforcement action for the OAH to adjudicate.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings for government agencies, such as the Office of Administrative Hearings. In this case, Tammy L. Eigenheer served as the ALJ.

A.R.S. § 33-1256

The specific Arizona Revised Statute cited by the Petitioner. This statute pertains to liens for assessments in condominiums, including provisions for reasonable collection and attorney fees associated with such liens.

Assessment

A mandatory fee paid by condominium owners to the homeowners’ association (HOA) for the maintenance of common elements and other association expenses.

Declaratory Judgment

A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any harm has occurred. The OAH stated it had no jurisdiction to issue such a judgment on the legal fees.

Department of Real Estate (ADRE)

The Arizona state agency responsible for licensing and regulating the real estate industry. Its functions include the Homeowners Association Dispute Resolution process.

A legal claim or hold on a property as security for a debt. In this case, the Condominium Association placed a lien on the Petitioner’s unit for unpaid assessments and fees.

Office of Administrative Hearings (OAH)

An independent Arizona state agency authorized to conduct hearings in contested matters for other state agencies, ensuring a fair and impartial process.

Petitioner

The party who files a petition initiating a legal case or administrative hearing. In this matter, the petitioner is the homeowner, Asmaa Kadhum.

Preponderance of the evidence

The standard of proof in most civil and administrative cases. It requires the party with the burden of proof (the Petitioner in this case) to show that their claim is more likely true than not.

Rehearing

A second hearing of a case to re-examine the issues and evidence. In this matter, a rehearing was granted after the initial April 4, 2022 hearing.

Release of Lien

A legal document that removes a previously recorded lien on a property. The Respondent recorded a Release of Lien on November 13, 2020, after acknowledging the original lien amount was incorrect.

Respondent

The party against whom a petition is filed. In this matter, the respondent is the Goldcrest Patio Homes Condominium Association.

5 Shocking Lessons from a Homeowner’s Two-Year War with Her HOA

Introduction: The Notice on the Door

It’s a moment many homeowners dread: finding an official notice from the Homeowner’s Association (HOA) taped to the front door. For most, it’s a minor issue—a reminder about lawn care or trash cans. But for homeowner Asmaa Kadhum, a notice in April 2020 regarding approximately $1,400 in past-due assessments was the first step in a spiraling, multi-year legal war with her Goldcrest Patio Homes Condominium Association.

What began as a manageable debt quickly escalated into a complex battle involving property liens, lawyers, and a dispute over thousands of dollars in legal fees. The case of Kadhum versus her HOA serves as a powerful cautionary tale, revealing several surprising and counter-intuitive truths about the high-stakes world of HOA disputes.

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1. You Can Win the Battle Over a Lien, But Still Owe the Fees

One of the central ironies of this case is how a clear victory on one front failed to end the war. After the homeowner fell behind on assessments, the HOA’s collection efforts caused the initial $1,435 dispute to snowball. On June 15, 2020, the HOA placed a lien on her property for $2,199. The homeowner disputed the lien’s accuracy, arguing that it contained errors.

Ultimately, she was proven correct. The HOA was forced to record a Release of Lien on November 13, 2020. This should have been the end of it, but here’s the twist: even with the lien gone, the HOA maintained that the homeowner was still responsible for approximately $3,500 in legal fees that had been incurred during the process of trying to collect the original debt. This reveals a crucial distinction in HOA law: getting an improper lien removed from your property title doesn’t automatically erase the associated collection costs from the HOA’s ledger. The manageable debt had now become a much larger problem.

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2. A Legal Technicality Can Get a Valid Complaint Dismissed

The homeowner, now facing a bill for thousands in legal fees related to a lien the HOA admitted was flawed, took her case to the Arizona Department of Real Estate. This move, however, highlights a critical strategic error. She filed her petition on January 12, 2022, alleging a violation of statute A.R.S. § 33-1256, which governs HOA liens and the reasonableness of the fees associated with them.

This led to a procedural “Catch-22” that doomed her case. The problem was timing. The HOA had released the improper lien on November 13, 2020—a full 14 months before the homeowner filed her petition. The case hinged on a procedural nuance that many homeowners might overlook: the statute she cited applies exclusively to active liens. Since the target of her complaint no longer existed by the time of the April 2022 hearing, the judge had no jurisdiction.

The Administrative Law Judge explained this jurisdictional trap in plain English:

and if there was a lien on your property right now, I could look at it and say whether or not the collection fees were appropriate, were reasonable. There isn’t one, so there’s nothing for me to evaluate.

The homeowner’s complaint about the fees might have had merit, but because she legally tied it to a violation that was no longer active, the court’s hands were tied. A different legal approach, perhaps focused on disputing the fees in another venue, may have been necessary.

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3. Correcting an Error Doesn’t Erase the Cost of Making It

The homeowner’s core argument was simple and relatable: why should she be forced to pay for the HOA’s mistakes? This question became even more pointed when documents revealed the HOA’s own attorney admitting the error. The attorney explained that the lien was released because it “included late fee charges that were found to be invalid” and the release was done to protect the association from a “potential false lien claim.”

During the hearing, the homeowner put the fundamental question to the judge: “Why… do we have to pay for their mistakes?”

Despite the HOA’s admission of error, the legal fees incurred during the entire collections process—including the work related to filing and defending the faulty lien—remained on her account. The situation reached a shocking climax during the hearing. When the judge reviewed the case, he noted that the HOA’s own representative, Mr. Latschar, “was uncertain where the $3,500.00 total originated.” The homeowner was being held liable for a debt that even her creditor couldn’t fully explain.

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4. A Disputed Debt Can Haunt a Property Sale

Even after the lien was officially released, the homeowner found herself in a financial vise. As she explained in the hearing, she wanted to sell her property and needed a formal statement from the HOA showing a zero balance to provide to potential buyers and title companies.

However, because the HOA’s books still showed she owed thousands in disputed legal fees, they would not provide this statement. This situation highlights the immense leverage an HOA maintains during a property conveyance. The dispute created a “phantom debt”—not an active lien recorded with the county, but a disputed balance on a ledger that can effectively halt a sale. The judge acknowledged this limbo, describing the amount as “just a number on a ledger.”

Yet, that number is a powerful barrier. Title insurance companies, which are essential for nearly all property sales, will not issue a clear policy if there is a known, unresolved financial dispute with an HOA. This gives the association the power to delay or prevent a sale, even without an active lien on the property.

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5. Small Communication Failures Lead to Big Legal Bills

This entire conflict escalated because of a pattern of communication failures that eroded trust long before lawyers were involved. Records show the friction began as early as November 2019, with the homeowner claiming disputes over incorrect receipts and the HOA’s alleged failure to waive late fees as promised.

The situation came to a head in April 2020. When the homeowner received the collection notice, she responded via email, stating it was “not a good timing for collections” due to the pandemic and that she planned to pay the full amount “after this pandemic goes away.” Instead of working toward a formal payment agreement, the HOA proceeded with legal action. The homeowner later claimed she tried to schedule meetings with the board to resolve the matter directly but “was never responded to.”

These failures in communication and negotiation were the direct catalyst for involving lawyers. That decision is what caused the debt to balloon from the original $1,435 to a prolonged, stressful, and expensive dispute over thousands in legal fees.

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Conclusion: A Pyrrhic Victory?

The ordeal of Asmaa Kadhum offers critical lessons for any homeowner in an HOA. It demonstrates that in these disputes, legal technicalities matter immensely, clear communication is non-negotiable, and winning a single battle doesn’t mean you’ve won the war. Even when a homeowner is “right” on a key point—like forcing the removal of an improper lien—they can still face significant and lasting financial consequences.

This case leaves every homeowner with a final, thought-provoking question to ponder: When facing a dispute with an HOA, how do you know when to fight for what’s right versus when to avoid a battle that might cost you more than you stand to gain?

Case Participants

Petitioner Side

Asmaa Kadhum (petitioner)
Filed the petition and appeared on her own behalf,
Mazin Ahmed (co-owner)
Referenced as part of 'Petitioner' definition; much of the correspondence was from/to him

Respondent Side

Jerry Latschar (board member)
Goldcrest Patio Homes Condominium Association
Vice President of the Board of Directors, appeared on behalf of Respondent

Neutral Parties

Tammy L. Eigenheer (ALJ)
OAH
Also referred to as Tammy Aganeer,,,
Louis Dettorre (Commissioner ADRE)
Arizona Department of Real Estate
Miranda Alvarez (legal secretary)
Transmitted decision
c. serrano (administrative staff)
Transmitted minute entry

Camelback Del Este Homeowners Association, Inc. v. Green Elephant

Posted on April 29, 2022 by [email protected]

Case Summary

Case ID	22F-H2222036-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2022-04-29
Administrative Law Judge	Jenna Clark
Outcome	The petition was denied, and the case was vacated and remanded due to lack of jurisdiction. The OAH determined the Petitioner failed to meet the statutory definition of a 'planned community' required for the Department of Real Estate to have authority over the dispute.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Camelback Del Este Homeowners Association, Inc.	Counsel	—
Respondent	Green Elephant Development LLC	Counsel	Ronald E. Huser, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 32-2102, 32-2199 et seq., 33-1802(4), 41-1092, ARIZ. ADMIN. CODE R2-19-111(4)

Outcome Summary

The petition was denied, and the case was vacated and remanded due to lack of jurisdiction. The OAH determined the Petitioner failed to meet the statutory definition of a 'planned community' required for the Department of Real Estate to have authority over the dispute.

Why this result: OAH lacked authority to hear the dispute because Petitioner failed to establish, by a preponderance of the evidence, that the Association met the definition of a 'planned community' under ARIZ. REV. STAT. § 33-1802(4). Specifically, there was no evidence of real estate ownership, roadway easements, mandatory membership, or mandatory assessments.

Key Issues & Findings

OAH jurisdiction over the dispute based on whether the Petitioner is a 'planned community.'

Petitioner alleged Respondent violated setback requirements in the Declaration of Restrictions (Section 5). Respondent moved for Judgment as a Matter of Law, arguing OAH lacked jurisdiction because Petitioner failed to prove it met the statutory definition of a 'planned community' under ARS § 33-1802(4).

Orders: Petitioner’s petition was denied. Respondent’s motion for a Judgment as a Matter of Law was granted. The matter was vacated and remanded to the Arizona Department of Real Estate (ADRE).

Filing fee: $500.00, Fee refunded: Yes

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. §§ 32-2102
ARIZ. REV. STAT. §§ 32-2199 et seq.
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092
ARIZ. ADMIN. CODE R2-19-111(4)

Analytics Highlights

Topics: HOA Dispute, Jurisdiction, Planned Community Definition, Setback Violation, Judgment as a Matter of Law, Voluntary Membership

Additional Citations:

ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1802(4)
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.05
ARIZ. REV. STAT. § 41-1092.09
ARIZ. ADMIN. CODE R2-19-111(4)
ARIZ. ADMIN. CODE R2-19-112
ARIZ. ADMIN. CODE R2-19-119

Video Overview

Audio Overview

Decision Documents

22F-H2222036-REL Decision – 958968.pdf

Uploaded 2026-04-24T11:48:38 (45.8 KB)

22F-H2222036-REL Decision – 962071.pdf

Uploaded 2026-04-24T11:48:41 (53.3 KB)

22F-H2222036-REL Decision – 966017.pdf

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22F-H2222036-REL Decision – 958968.pdf

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This summary details the hearing proceedings and final decision in the matter of *Camelback Del Este Homeowners Association, Inc. vs. Green Elephant Development LLC* (No. 22F-H2222036-REL), held before Administrative Law Judge Jenna Clark.

Key Facts and Issues

The hearing, held on April 27, 2022, addressed the Petitioner Association's claim that the Respondent, Green Elephant Development LLC (a property owner), violated Section 5 of the Association's Declaration of Restrictions. The specific allegation was that construction on the Respondent's property (located at 4802 N. 38th St.) failed to meet the required 7-foot side and 20-foot front setback requirements.

Petitioner's representative, Robert Chiffelle, testified that construction plans submitted to the City of Phoenix showed setbacks of approximately 3 feet and 15 feet, respectively, which violated the Declaration.

Key Arguments and Proceedings

The primary legal dispute centered on whether the Office of Administrative Hearings (OAH) possessed the necessary jurisdiction to hear the case.

Petitioner’s Case and Admissions: Petitioner Chiffelle presented evidence (including exhibits 1, 4-5, 7, and 9), but in cross-examination, conceded that the Association does not own any real estate within the subdivision. He further testified that membership in the Association is voluntary, and any collected monies are voluntary contributions, not mandatory assessments or required dues.
Respondent’s Motion for Judgment as a Matter of Law: Respondent’s counsel, Ron Huser, moved for dismissal (Judgment as a Matter of Law) at the close of the Petitioner’s case-in-chief. The core argument was that the Association failed to meet the statutory definition of a "planned community" under ARIZ. REV. STAT. § 33-1802(4). The statute requires a planned community to (1) own real estate or hold an easement to maintain roadways, AND (2) have a declaration that expressly states owners are mandatory members and required to pay assessments.
Lack of Substantive Proof: Respondent also argued that even if jurisdiction existed, Petitioner failed to present evidence of actual measurements of the completed construction, relying only on submitted plans, and thus failed to prove a Section 5 violation.

Outcome and Legal Rationale

The Administrative Law Judge granted the Respondent's Motion for Judgment as a Matter of Law.

The OAH concluded that the matter fell outside the Department of Real Estate’s jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq..

The ruling rested on the finding that the Petitioner failed to establish by a preponderance of the evidence that the Association is a "planned community". Specifically, the record was devoid of evidence showing that the Association:

Owns or operates real estate.
Holds an easement or covenant to maintain roadways.
Possesses community documents that expressly require property owners to be mandatory members and pay mandatory assessments.

The final order denied the Petitioner’s petition, granted the Respondent’s motion, and vacated and remanded the matter to the referring agency (Arizona Department of Real Estate) for any further action.

{ “case”: { “docket_no”: “22F-H2222036-REL”, “case_title”: “Camelback Del Este Homeowners Association, Inc. vs. Green Elephant Development LLC”, “decision_date”: “2022-04-29”, “alj_name”: “Jenna Clark”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Does the Arizona Department of Real Estate have jurisdiction over every type of homeowner association dispute?”, “short_answer”: “No, the Department only has jurisdiction over disputes involving a “planned community” as defined by statute.”, “detailed_answer”: “The ALJ decision clarifies that the Department’s jurisdiction is limited to disputes between an owner and a “planned community” association. If an association does not meet the statutory definition of a planned community, the administrative court cannot hear the case.”, “alj_quote”: “This matter falls outside the Department’s jurisdiction pursuant to ARIZ. REV. STAT. §§ 32-2102 and 32-2199 et seq., regarding a dispute between an owner and a planned community association.”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2102, 32-2199”, “topic_tags”: [ “jurisdiction”, “planned community definition”, “administrative authority” ] }, { “question”: “What are the specific requirements for an association to be legally considered a ‘planned community’?”, “short_answer”: “A planned community must own/operate real estate (or maintain roadways) and have a declaration mandating membership and assessments.”, “detailed_answer”: “According to Arizona statute cited in the decision, a planned community requires three elements: 1) The association owns/operates real estate or holds easements to maintain roadways; 2) The declaration explicitly states owners are mandatory members; and 3) The declaration explicitly states owners are required to pay assessments.”, “alj_quote”: “a real estate development that includes real estate owned and operated by or real estate on which an easement to maintain roadways or a covenant to maintain roadways is held by a nonprofit corporation… and in which the declaration expressly states both that the owners of separately owned lots, parcels or units are mandatory members and that the owners are required to pay assessments to the association for these purposes.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “legal definitions”, “planned community”, “assessments”, “mandatory membership” ] }, { “question”: “If my HOA membership is voluntary, can the HOA take me to an administrative hearing?”, “short_answer”: “No, the Office of Administrative Hearings lacks authority over voluntary associations.”, “detailed_answer”: “If the evidence shows that membership is voluntary rather than mandatory, the association does not qualify as a planned community. Consequently, the administrative law judge must dismiss the case for lack of authority.”, “alj_quote”: “Because the evidence failed to establish, at a minimum, that the Association is a planned community, OAH does not have any authority to consider a dispute between the Association and Respondent”, “legal_basis”: “ARIZ. REV. STAT. §§ 32-2199(2), 41-1092”, “topic_tags”: [ “voluntary membership”, “jurisdiction”, “dismissal” ] }, { “question”: “Who has the burden of proof in a hearing regarding an alleged violation?”, “short_answer”: “The Petitioner (the party filing the complaint) bears the burden of proof.”, “detailed_answer”: “The party bringing the action must prove their case by a preponderance of the evidence. This includes proving that the tribunal has jurisdiction and that the specific violation occurred.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence first that this matter is properly before the OAH and then that Respondent violated Section 5 of the DECLARATION.”, “legal_basis”: “ARIZ. ADMIN. CODE R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “procedure” ] }, { “question”: “Does an HOA need to provide actual measurements to prove a setback violation?”, “short_answer”: “Yes, specific evidence of the actual construction dimensions is required.”, “detailed_answer”: “The ALJ noted that the HOA failed to provide evidence that construction had factually taken place that exceeded the specific setback requirements (e.g., 7ft side, 20ft front). Without measurements or factual proof of the construction’s location relative to property lines, the violation cannot be established.”, “alj_quote”: “[N]o evidence was submitted to establish… that any construction has factually taken place… which exceeds the DECLARATION’S 7ft side setback and 20ft front setback property requirements.”, “legal_basis”: “Preponderance of the Evidence”, “topic_tags”: [ “evidence”, “setbacks”, “violations” ] }, { “question”: “Is an HOA considered a ‘planned community’ if it does not own any common areas?”, “short_answer”: “No, the association must own real estate or hold easements for maintaining roadways.”, “detailed_answer”: “A critical component of the legal definition of a planned community is that the association must own and operate real estate or hold specific maintenance easements. Failure to prove this ownership prevents the association from being classified as a planned community under the statute.”, “alj_quote”: “Petitioner failed to present any evidence that it owns and operates any real estate, or that it has an easement or covenant to maintain roadways.”, “legal_basis”: “ARIZ. REV. STAT. § 33-1802(4)”, “topic_tags”: [ “common areas”, “property ownership”, “planned community definition” ] }, { “question”: “What is the standard of proof used in these administrative hearings?”, “short_answer”: “Preponderance of the evidence.”, “detailed_answer”: “The standard is whether the contention is more probably true than not. This is described as the greater weight of the evidence or superior evidentiary weight.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)”, “topic_tags”: [ “legal standards”, “preponderance of evidence” ] } ] }

Case Participants

Petitioner Side

Robert Chiffelle (HOA President/Petitioner Rep/Witness)
Camelback Del Este Homeowners Association, Inc.
Also referred to as Bob Chappelle.
Jeremy Lyons (HOA Treasurer/Observer)
Camelback Del Este Homeowners Association, Inc.
Also referred to as Mr. Lions; submitted the petition on behalf of Petitioner.
Missy Lopez (Observer)
Camelback Del Este Homeowners Association, Inc.
Dr. B. Paul Scott (Architectural Committee member/Observer)
Camelback Del Este Homeowners Association, Inc.
Mike Goldwater (Previous HOA President)
Camelback Del Este Homeowners Association, Inc.

Respondent Side

Ronald E. Huser (Respondent Attorney)
Huser Law Firm
Bryant Aplass (Respondent Co-Owner/Director/Witness)
Green Elephant Development LLC
Co-owner and member; also referred to as Bryant Alpass/Applas; role listed as Director of Business Development.
Cody Sperber (Respondent President/Witness)
Green Elephant Development LLC
Also referred to as Cody Fergburgger.
Garrett Schmidt (Respondent Rep/Witness)
Green Elephant Development LLC
Reggie Martinez (Witness)
Green Elephant Development LLC

Neutral Parties

Jenna Clark (ALJ)
Office of Administrative Hearings
Louis Dettorre (Commissioner)
Arizona Department of Real Estate
c. serrano (Legal Staff)
Office of Administrative Hearings
Transmitted Minute Entries.
Miranda Alvarez (Legal Secretary)
Office of Administrative Hearings
Transmitted ALJ Decision.

Marc Archer v. PMPE Community Association, Inc.

Posted on March 30, 2022 by [email protected]

Case Summary

Case ID	21F-H2121040-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2022-03-30
Administrative Law Judge	Thomas Shedden
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Marc Archer	Counsel	—
Respondent	PMPE Community Association, Inc.	Counsel	Nicholas C. S. Nogami

Alleged Violations

ARIZ. REV. STAT. section 33-1817(B)(3)

Outcome Summary

The Association unreasonably withheld approval for Marc Archer's two-story garage addition, thereby violating ARIZ. REV. STAT. § 33-1817(B)(3). The Association was ordered to grant preliminary approval for the design and refund the $500 filing fee.

Key Issues & Findings

Unreasonable withholding of architectural approval

The Association unreasonably withheld preliminary approval for the Petitioner's January 2020 two-story garage addition request. The ALJ determined that none of the three reasons provided by the Association for the denial were reasonable.

Orders: The Association must grant preliminary approval for the proposed design and must pay the Petitioner his filing fee of $500.00 within thirty days of the Order.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

ARIZ. REV. STAT. § 33-1817(B)(3)
ARIZ. REV. STAT. § 32-2199.02(A)
AR Section 1.1
AR Section 4.4
AR Section 4.2

Analytics Highlights

Topics: HOA architectural approval, unreasonable denial, two-story garage addition, filing fee refund

Additional Citations:

ARIZ. REV. STAT. § 33-1817(B)(3)
ARIZ. REV. STAT. § 32-2199.02(A)
ARIZ. ADMIN. CODE § R2-19-119
AR Section 1.1
AR Section 4.4
AR Section 4.2

Video Overview

Audio Overview

Decision Documents

21F-H2121040-REL Decision – 980535.pdf

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21F-H2121040-REL Decision – 983516.pdf

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21F-H2121040-REL Decision – 928659.pdf

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21F-H2121040-REL Decision – 943581.pdf

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21F-H2121040-REL Decision – 953334.pdf

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21F-H2121040-REL Decision – 958716.pdf

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21F-H2121040-REL Decision – 928659.pdf

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21F-H2121040-REL Decision – 943581.pdf

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21F-H2121040-REL Decision – 953334.pdf

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21F-H2121040-REL Decision – 958716.pdf

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This summary focuses on the administrative hearing concerning the reasonableness of the Respondent's denial of the Petitioner's architectural request.

Key Facts and Procedural History

The Petitioner, Marc Archer, sought approval from the Respondent, PMPE Community Association, Inc., for a two-story garage addition to his home. This was the third hearing alleging that the Association violated ARIZ. REV. STAT. § 33-1817(B)(3), which mandates that the approval of construction plans shall not unreasonably be withheld.

In December 2020, following a previous Administrative Law Judge (ALJ) decision which found the Association violated its rules by not providing a written basis for denial, the Association issued a written response outlining its reasons. A key issue during the hearing was the confusion and vagueness of this response, as two of the three reasons for denial were also listed in a subsequent section that the Association testified was merely advisory.

Main Issues and Arguments

The core issue before ALJ Thomas Shedden was whether the Association’s denial of preliminary approval for Archer’s two-story design was unreasonable. The burden of proof lay with the Petitioner.

The Association’s three reasons for denial (based on the December 30, 2020, letter) were:

Lack of Harmony/Incorporation: The addition was deemed a "large two-story 'box'" that did not harmonize with the existing structure or enhance the community (AR § 1.1). The Association argued the proposed roof did not blend into the existing roof.

*Legal Point:* The ALJ noted that evidence showed the proposed roof matched the existing pitch, and other houses had multiple roof lines. Therefore, there was no substantial evidence that the addition would "dominate and/or sharply contrast" with the community.

Painted Roof Tiles: The Association deemed painted roof tiles unacceptable (AR § 4.4).

*Legal Point:* The ALJ found that the Association acted outside its scope of authority, as the Architectural Rules (ARs) did not explicitly prohibit painting tiles, though they specified required tile types and approved colors. Archer also presented evidence that he had since located sufficient matching tile.

Insufficient Architectural Expression: A need to add more architectural elements (pop-outs, windows, etc.) to break up expanses (AR § 4.2).

*Legal Point:* Archer provided credible evidence that his plans already included stucco pop-outs, inset windows, and soffit details that matched the existing structure, thus satisfying the requirement for architectural expression.

Outcome and Legal Decision

The Administrative Law Judge issued a Decision on March 30, 2022, concluding that the Petitioner prevailed.

The ALJ concluded that the Association’s reasons for denial were arguably unclear due to the mixed advisory/required language but found that Mr. Archer presented sufficient evidence to show that none of the three reasons was reasonable.

The Order required that:

The Association should approve Marc Archer's preliminary design.
The Association must pay Archer his $500 filing fee within thirty days.

{ “case”: { “docket_no”: “21F-H2121040-REL”, “case_title”: “Marc Archer v. PMPE Community Association, Inc.”, “decision_date”: “2022-03-30”, “alj_name”: “Thomas Shedden”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can my HOA unreasonably refuse to approve my architectural plans?”, “short_answer”: “No, state law prohibits the unreasonable withholding of approval for construction projects.”, “detailed_answer”: “Arizona law explicitly states that an HOA cannot unreasonably withhold approval for architectural designs, plans, or amendments. If an HOA denies a request, the denial must be based on reasonable grounds supported by the community documents.”, “alj_quote”: “ARIZ. REV. STAT. section 33-1817(B)(3) provides that “Approval of a construction project’s architectural designs, plans and amendments shall not unreasonably be withheld.””, “legal_basis”: “A.R.S. § 33-1817(B)(3)”, “topic_tags”: [ “architectural review”, “homeowner rights”, “statutory compliance” ] }, { “question”: “Is the HOA required to give me a written reason if they deny my project?”, “short_answer”: “Yes, failing to provide a written reason for denial can be considered a violation of the statute.”, “detailed_answer”: “In this dispute, a prior decision established that the HOA violated the law by failing to provide the homeowner with a written explanation for denying preliminary approval. The homeowner must be informed of the specific basis for the decision.”, “alj_quote”: “In a Decision dated December 3, 2020, the ALJ in that matter determined that the Association had violated its CC&Rs and section 33-1817(B)(3) because it did not provide Mr. Archer with a written reason for denying preliminary approval.”, “legal_basis”: “A.R.S. § 33-1817(B)(3)”, “topic_tags”: [ “procedural requirements”, “due process”, “denial notices” ] }, { “question”: “Can the HOA deny my request based on a rule that isn’t written down?”, “short_answer”: “Generally no. If the architectural rules do not explicitly prohibit a specific material or method, the HOA may be acting outside its authority to deny it.”, “detailed_answer”: “The ALJ found that the HOA acted outside its authority by denying a request to paint roof tiles because the architectural rules (ARs) did not explicitly prohibit painting tiles, whereas other sections of the rules explicitly prohibited other specific materials (like vinyl siding).”, “alj_quote”: “Regarding the second basis for denial, the preponderance of the evidence shows that the Association acted outside its scope of authority because the ARs do not include a prohibition on painting tiles.”, “legal_basis”: “Scope of Authority”, “topic_tags”: [ “enforcement authority”, “architectural rules”, “unwritten rules” ] }, { “question”: “Who has to prove the case if I file a petition against my HOA?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof.”, “detailed_answer”: “In an administrative hearing regarding an HOA dispute, the homeowner alleging the violation is responsible for providing evidence that supports their claim by a preponderance of the evidence.”, “alj_quote”: “Mr. Archer bears the burden of proof to show that the alleged violation occurred. The standard of proof on all issues in this matter is that of a preponderance of the evidence.”, “legal_basis”: “A.A.C. R2-19-119”, “topic_tags”: [ “burden of proof”, “legal standards”, “hearing procedures” ] }, { “question”: “Can the HOA deny my project because they think it doesn’t ‘harmonize’ with the neighborhood?”, “short_answer”: “Only if they can prove it will ‘dominate or sharply contrast’ with the community.”, “detailed_answer”: “While rules often require harmony, this is interpreted to mean the project should not dominate or contrast sharply. If the evidence shows the project shares features (like roof pitch) with other homes, a denial based on lack of harmony may be unreasonable.”, “alj_quote”: “AR section 1.1 shows that improvements are to harmonize with the community, “rather than to dominate and/or contrast sharply with it.” … There was no substantial evidence adduced showing that Mr. Archer’s proposed addition will dominate or sharply contrast with the community.”, “legal_basis”: “Community Documents (AR Section 1.1)”, “topic_tags”: [ “aesthetics”, “harmony”, “architectural standards” ] }, { “question”: “Can I get my filing fee back if I win against the HOA?”, “short_answer”: “Yes, if the homeowner prevails, the HOA can be ordered to reimburse the filing fee.”, “detailed_answer”: “State law allows the prevailing party in an HOA dispute to recover the filing fee. In this case, because the ALJ ordered the HOA to approve the design, the HOA was also ordered to pay the petitioner’s $500 fee.”, “alj_quote”: “The Association also must pay to Mr. Archer his $500 filing fee. ARIZ. REV. STAT. § 32-2199.02(A).”, “legal_basis”: “A.R.S. § 32-2199.02(A)”, “topic_tags”: [ “penalties”, “reimbursement”, “filing fees” ] }, { “question”: “Does hiring an architect to review my plans help my case?”, “short_answer”: “Yes, professional opinions stating your plans comply with the rules can be strong evidence.”, “detailed_answer”: “The homeowner presented an affidavit from a registered architect who reviewed the plans and rules, concluding the design was compliant. This evidence helped refute the HOA’s claims that the design lacked architectural elements.”, “alj_quote”: “Mr. Bragg concluded that the proposal was in compliance with the ARs. He noted that the proposed second floor matched the existing architecture and that the “lowered roof height is stepped below the existing second floor roof line….””, “legal_basis”: “Evidence Weight”, “topic_tags”: [ “expert testimony”, “evidence”, “architectural review” ] }, { “question”: “What if the HOA’s denial letter is confusing or lists reasons as just ‘advisory’?”, “short_answer”: “The judge will look at the actual reasons for denial, even if the HOA categorizes them poorly.”, “detailed_answer”: “In this case, the HOA listed some reasons for denial under a section labeled ‘advisory.’ The ALJ noted this was confusing but still analyzed whether those reasons were valid grounds for denial. The confusion did not prevent the judge from ruling the denial was unreasonable.”, “alj_quote”: “The Association’s reasons for denial are arguably not clear because it included two of its three reasons in a portion of the denial notice that was advisory only. Nevertheless, Mr. Archer presented sufficient evidence to show that none of the three reasons is reasonable.”, “legal_basis”: “Reasonableness Standard”, “topic_tags”: [ “denial notices”, “administrative review”, “confusion” ] } ] }

Case Participants

Petitioner Side

Marc Archer (petitioner)
Greg Hancock (witness)
Witness for Petitioner, works in building industry
Dr. Victor Zach (witness)
Witness for Petitioner, lives across the street from Petitioner
Dan Earlie (witness)
Witness for Petitioner, experienced in homebuilding and HOA boards
Thomas Bragg (architect/witness)
Registered architect hired by Petitioner

Respondent Side

Nicholas C. S. Nogami (HOA attorney)
Carpenter Hazlewood Delgado & Bolen LLP
Keith Kauffman (board member/witness)
PMPE Community Association, Inc.
President and long-time board member of the Association
Gail Zigler (property manager/witness)
Community manager for the Association
Mr. Sasser (committee member/neighbor)
Mentioned as an opponent to the addition
Carlotta L. Turman (HOA attorney)
Carpenter Hazlewood Delgado & Bolen LLP

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Louis Dettorre (ADRE Commissioner)
Arizona Department of Real Estate
Tammy L. Ikenberg (ALJ/Hearing Officer)
Office of Administrative Hearings
ALJ in prior related proceedings (19F-H1919063-REL, 20F-H2020063-REL)
Claire Miller (Preserve Park Supervisor)
City Parks and Recreation

Other Participants

AHansen (unknown)
Arizona Department of Real Estate
vnunez (unknown)
Arizona Department of Real Estate
djones (unknown)
Arizona Department of Real Estate
DGardner (unknown)
Arizona Department of Real Estate
tandert (unknown)
Arizona Department of Real Estate
Miranda Alvarez (unknown)
Clerical staff noted on transmission records (also Miranda A)
c. serrano (unknown)
Clerical staff noted on transmission records
Dr. Smith (unknown)
House used for a meeting location

Judy Clapp v. Forest Trails Homeowners Association

Posted on March 29, 2022 by [email protected]

Case Summary

Case ID	22F-H2221026-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2022-03-29
Administrative Law Judge	Velva Moses-Thompson
Outcome	The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove that the Forest Trails Homeowners Association violated its governing documents when it approved landscaping that obstructed parking in a common area.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Judy Clapp	Counsel	Kevin Harper
Respondent	Forest Trails Homeowners Association	Counsel	Edward D. O'Brien; Edith I. Rudder

Alleged Violations

Declaration § 2.2; Declaration § 2.21; Architectural Guidelines

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Petitioner failed to prove that the Forest Trails Homeowners Association violated its governing documents when it approved landscaping that obstructed parking in a common area.

Why this result: The Petitioner failed to meet the evidentiary burden that the HOA violated the Declaration or related statutes. The ALJ found that the Declaration permits landscaping in the common area (Section 2.2) and the petitioner presented no legal authority mandating the disputed area remain solely available for parking.

Key Issues & Findings

Alleged violation concerning landscaping in common area preventing parking.

Petitioner Judy Clapp alleged the HOA improperly approved the adjacent homeowner's (Normans) landscaping project in the common area next to Lot 1473 Trailhead. She claimed this blocked a historical parking area used by multiple homeowners, violating Declaration Section 2.2 (common area use for benefit of all members, including parking as a permitted use) and Architectural Guidelines (prohibiting exclusive use of common area).

Orders: The petition was dismissed. The ALJ found that the Petitioner failed to meet the burden of proof to establish that the Respondent violated the Declaration or any statute.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

Declaration § 2.2
Declaration § 2.21
Architectural Guidelines
A.R.S. § 32-2199(B)
Declaration § 3.4
Declaration § 4.1

Analytics Highlights

Topics: Common Area, Landscaping, Parking, Architectural Control Committee, Exclusive Use, HOA Governance

Additional Citations:

Declaration § 2.2
Declaration § 2.21
Architectural Guidelines
A.R.S. § 32-2199(B)
Declaration § 3.4
Declaration § 4.1

Video Overview

Audio Overview

Decision Documents

22F-H2221026-REL Decision – 958497.pdf

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22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Hearing.pdf

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22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Petition.pdf

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22F-H2221026-REL Decision – HO22-21026_Hearing_Scheduled.pdf

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22F-H2221026-REL Decision – HO22-21026_Notice_AppearanceRespondent.pdf

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22F-H2221026-REL Decision – HO22-21026_Notice_Hearing.pdf

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22F-H2221026-REL Decision – HO22-21026_Notice_Petition.pdf

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22F-H2221026-REL Decision – HO22-21026_Payment.pdf

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22F-H2221026-REL Decision – HO22-21026_Petition.pdf

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22F-H2221026-REL Decision – HO22-21026_Response_Petition_Form.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_ElectronicNotice_Hearing.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_ElectronicNotice_Petition.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Hearing_Scheduled.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Notice_AppearanceRespondent.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Notice_Hearing.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Notice_Petition.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Payment.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Petition.pdf

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22F-H2221026-REL Decision – 944374/HO22-21026_Response_Petition_Form.pdf

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22F-H2221026-REL Decision – 958497.pdf

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22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Hearing.pdf

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22F-H2221026-REL Decision – HO22-21026_ElectronicNotice_Petition.pdf

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Case Briefing: Judy Clapp v. Forest Trails Homeowners Association

Executive Summary

This document synthesizes the proceedings of the administrative hearing held on March 9, 2022, regarding Docket Number 22F-H2221026-l. The dispute involves a challenge by petitioner Judy Clapp against the Forest Trails Homeowners Association (HOA) concerning the landscaping of an eight-foot unpaved common area adjacent to 1473 Trail Head (the “Norman lot”).

The central conflict involves the Board’s decision to allow a homeowner to install a rock berm on association-owned land that had historically functioned as a parking lane for residents accessing a nearby trail head. The petitioner alleges this action violates the community’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs) by granting exclusive use of common area to one homeowner and eliminating a long-standing community benefit. The association contends that the Board acted within its authority to approve architectural requests, maintained consistency with community-wide landscaping standards, and addressed legitimate nuisance and erosion concerns.

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Case Overview and Hearing Details

• Date of Hearing: March 9, 2022

• Administrative Law Judge: Alvin Moses Thompson

• Petitioner: Judy Clapp (Represented by Kevin Harper)

• Respondent: Forest Trails Homeowners Association (Represented by Ed O’Brien)

• Key Witnesses: Judy Clapp (Petitioner); Dean Meyers (Board Member/Witness for Respondent)

• Subject Property: Common area adjacent to 1473 Trail Head, Prescott, Arizona.

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Primary Legal and Regulatory Framework

The dispute centers on the interpretation of specific governing documents produced as evidence:

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

• Section 2.2 (Common Areas and Open Space): States that common areas “shall be for the use and benefit of all members” and should be left in their natural state unless used for specific purposes, including “trails, walkways, driveways, parking areas, appropriate signs, recreational amenities, [and] landscaping.”

• Section 3.4: Grants the association the authority to “own, repair, manage, operate, and maintain” common areas according to the plat.

• Section 3.4.9: Designates the Architectural Control Committee (ACC) as the “judge of all aesthetic matters” on the common area.

• Section 4.1: Provides the Board with flexibility in its decision-making regarding association property.

Architectural Guidelines

• Landscaping Provisions: Permitted on the unpaved association-owned area (approx. 8 feet) between the lot line and the street only with ACC approval.

• Exclusive Use Restriction: Mandates that any such approval “will not give the property owner exclusive use of this association property.”

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Main Themes and Arguments

1. Historical Use vs. New Architectural Approval

The petitioner argues that the area in question served as a de facto parking lane for approximately 15–20 years, accommodating up to three vehicles.

• Petitioner Position: The removal of this parking area harms residents who now must walk an additional mile or more to access trail heads. Clapp asserts the association consistently denied similar requests in the past to protect common area access.

• Respondent Position: The HOA argues that parking was never a “guaranteed right” or a “written amenity” in the declaration. They contend the Board could not “say no” to the Normans’ request because hundreds of other homeowners have similar roadside landscaping.

2. Allegations of “Exclusive Use”

A major point of contention is whether the rock berm constitutes a violation of the rule against “exclusive use.”

• Petitioner’s Argument: The installation of large boulders and a rock berm makes it impossible for vehicles to park and “unsafe” or “risky” for pedestrians to walk over, effectively gifting the land to the adjacent homeowner.

• Respondent’s Argument: The area is not fenced or walled. Members of the public or homeowners can still theoretically walk on it, meaning use is not exclusive. Dean Meyers testified that the area is “less accessible” but still accessible at the ends.

3. Nuisance Mitigation and Safety

The HOA justifies the landscaping as a solution to long-standing issues.

• Respondent’s Evidence: Dean Meyers testified that the parking area created nuisances including noise (dogs, yelling), trash, and public intrusion 40 feet from the Normans’ kitchen. Furthermore, Meyers cited an erosion issue where water was undermining the cement curb, a problem he claims the landscaping resolved.

• Petitioner’s Rebuttal: Clapp, a former board member of 10 years, testified she never heard of safety, noise, or trash complaints regarding this site until February 2021, four months after the rocks were installed. She suggested the “safety” argument was an after-the-fact justification.

4. Conflict of Interest and Procedure

The petitioner raised concerns regarding the motivations behind the approval.

• Self-Serving Motivation: Witness Dean Meyers is a permanent board member and also the owner of the landscaping company hired by the Normans to perform the work.

• Lack of Formal Vote: Clapp testified that the work appeared to be allowed without a formal board vote, though respondent minutes from October 27, 2020, show the board requested gravel samples for the project.

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Critical Evidence and Testimony

Photographic Evidence (Exhibit 6)

The hearing reviewed nine photographs showing the evolution of the site:

• Before: A dirt “parking lane” capable of holding cars.

• After: A “rock berm” consisting of large boulders and smaller rocks that completely prohibit vehicle access.

Comparison to Other Amenities

Clapp pointed to the community tennis courts as evidence of unfair treatment.

• Tennis Court Parking: The HOA recently expanded and paved parking for tennis players (Exhibits 17, 18).

• Trail Head Parking: Conversely, the HOA eliminated parking for hikers at the trail head, which Clapp described as the community’s only other amenity.

Legal Opinion of Jim Atkinson

An email exchange (Exhibit 7) involving former Board President and attorney Jim Atkinson was introduced. Atkinson’s noted opinion stated:

• The 8-foot area is common area property, “no different than its ownership of the paved areas.”

• Parking is a permitted use under Section 2.2.

• The Board “never agreed to allow a lot owner to block access to the shoulder area.”

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Conclusions and Sought Relief

The Petitioner seeks an order confirming that the CC&Rs prohibit these specific landscaping changes and requiring the association to restore the common area to its original condition.

The Respondent maintains that the Board acted within its discretionary authority to manage common areas and treat all members fairly by approving a standard landscaping request. They argue the Petitioner is seeking a “prescriptive easement” to park in a specific spot, a right they claim does not exist under the governing documents or Arizona law.

Summary Table of Arguments

Petitioner’s View

Respondent’s View

Land Use

Reserved for the benefit of all members (parking/trails).

Subject to Board management and aesthetic discretion.

Accessibility

Rock berm creates “exclusive use” by blocking access.

No fence exists; property remains technically accessible.

Safety/Nuisance

No evidence of prior complaints; “punitive” decision.

Resolved erosion, trash, and noise nuisances.

Consistency

Association has historically denied such requests.

Hundreds of other lots have identical landscaping.

Board Ethics

Decision was self-serving (witness was the contractor).

Business was private between the contractor and homeowner.

Study Guide: Judy Clapp v. Forest Trails Homeowners Association (Docket No. 22F-H2221026-I)

This study guide provides a comprehensive overview of the administrative hearing held on March 9, 2022, regarding a dispute over common area usage, landscaping rights, and parking access within the Forest Trails community.

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Part I: Short-Answer Quiz

Instructions: Answer the following questions in 2–3 sentences based on the provided hearing transcript and documents.

1. What is the central issue of the dispute between Judy Clapp and the Forest Trails Homeowners Association?

2. How does Section 2.2 of the Forest Trails Declaration define the purpose and permitted uses of “common areas”?

3. What physical modification to the area near 1473 Trail Head triggered this legal action, and who performed the work?

4. What is the Petitioner’s primary argument regarding the “exclusive use” of the landscaped common area?

5. How does the Association justify its decision to approve the Normans’ landscaping request despite member objections?

6. What did the 2002–2003 review of the plat and CC&Rs reveal to the Association board regarding the 8-foot strips alongside the roadways?

7. What “nuisances” did the Respondent cite as reasons for prohibiting parking at the trail head location?

8. How does the Petitioner use the example of the community tennis courts to argue that the Association’s parking policy is inconsistent?

9. According to the testimony of Dean Myers, what is the Association’s policy regarding damage to homeowner-installed landscaping caused by snowplows?

10. What specific legal relief is the Petitioner seeking from the Administrative Law Judge?

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Part II: Answer Key

1. The dispute centers on the Association’s decision to allow a specific homeowner (the Normans) to landscape a common area in a way that prohibits long-standing member parking. The Petitioner argues this violates the Declaration’s provision that common areas benefit all members, while the Association claims the right to manage aesthetics and address nuisances.

2. Section 2.2 states that common areas are for the “use and benefit of all members” and should generally be left in their natural state. However, it explicitly allows these areas to be used for specific purposes, including trails, walkways, driveways, parking areas, landscaping, and utility easements.

3. The Normans installed large boulders and a rock berm on the association-owned unpaved roadway shoulder to prevent vehicles from parking there. This work was executed by Dean Myers, who is a permanent member of the Association’s Board of Directors and the owner of a landscaping company.

4. The Petitioner argues that the installation of the rock berm effectively grants the Normans “exclusive use” of the common area by making it physically inaccessible to others. She contends this violates the Architectural Guidelines, which state that landscaping approval shall not give a property owner exclusive use of association property.

5. The Association argues it must treat all members fairly, noting that hundreds of other residents have been allowed to landscape the common area up to the roadside. They assert that denying the Normans’ request would have unfairly “singled them out” when similar requests are universally approved.

6. The board realized that the 8-foot unpaved areas on each side of the paved roads were not private property but were actually “common areas” owned and managed by the Association. Following this discovery, the Association took over maintenance responsibilities, such as weed control and erosion management, for these strips.

7. The Respondent claimed that parking at the trail head created nuisances including trash, noise, and “public intrusion” from non-residents. Additionally, Dean Myers testified that parking was exacerbating erosion issues that were beginning to undermine the concrete street curb.

8. The Petitioner points out that the Association recently expanded and paved parking at the community tennis courts to benefit members who play tennis. She argues it is discriminatory to improve amenities for one group of members while removing a traditional parking benefit for those who use the hiking trails.

9. The Association generally holds the homeowner responsible for the costs of repairing any landscaping that extends into the common area if it is damaged by a snowplow. This serves as a condition of allowing private landscaping on association-owned land; the board only pays if the plow operator acted “stupidly.”

10. The Petitioner is seeking an order confirming that the Declaration prohibits these specific landscaping changes. Furthermore, she is requesting that the Association be ordered to restore the common area to its original condition to allow for continued member parking.

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Part III: Essay Questions

Instructions: Use the source context to develop comprehensive responses to the following prompts. (Answers not provided).

1. Aesthetics vs. Utility: Analyze the tension between the Board’s authority to judge “aesthetic matters” (Section 3.4.9) and the “permitted uses” of common areas (Section 2.2). Which authority should take precedence when a visual improvement eliminates a functional use?

2. The Definition of Exclusive Use: Evaluate the Respondent’s argument that the rock berm does not constitute “exclusive use” because there is no fence. Contrast this with the Petitioner’s testimony regarding the physical safety and accessibility of the area for members.

3. Conflicts of Interest in Governance: Discuss the implications of Dean Myers serving as both the board member approving (or allowing) the project and the contractor performing the work. How does this dual role affect the Association’s “fairness” argument?

4. Safety and Nuisance as Justification: Examine the evidence provided for safety concerns and nuisances at the trail head. Was the Association’s response (permitting boulders) a proportionate and evidenced-based solution to the problems described?

5. Historical Practice vs. Written Code: Explore the legal weight of “decades of practice” versus the literal interpretation of the Plat and Declaration. Should sixteen years of uninterrupted use by members create a protected right to park, even if not explicitly marked on a plat map?

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Part IV: Glossary of Key Terms

Definition

Architectural Control Committee (ACC)

The body (often the Board of Directors in this case) responsible for reviewing and approving or denying changes to property and common areas.

Common Area

Land owned by the Homeowners Association for the use, benefit, and enjoyment of all members, such as the 8-foot strips adjacent to roadways.

Declaration (CC&Rs)

The “Amended Declaration of Covenant Conditions and Restrictions,” which serves as the primary governing document for the Forest Trails community.

Developer Position

A permanent seat on the Board of Directors reserved for the original developer or their representative (currently held by Dean Myers).

Easement

A legal right to use another’s land for a specific limited purpose; in this case, the trail head access is described as an easement between two lots.

Exclusive Use

The sole right to use a portion of property to the exclusion of others; prohibited for private owners on association common areas.

GIS (Geographic Information System)

Digital mapping technology used in the hearing to show property lines and the relationship between lots and association-owned streets.

Natural State

The original, undeveloped condition of land; Section 2.2 mandates common areas be kept this way unless used for specific permitted purposes like trails or parking.

Petitioner

The party initiating the legal grievance or “petition” (Judy Clapp).

Plat / Plat Map

An official map drawn to scale, showing the divisions of a piece of land, including lots, streets, and common areas.

Respondent

The party responding to the legal grievance (Forest Trails Homeowners Association).

Rock Berm

A man-made barrier or mound constructed of rocks and boulders used in this case to physically block vehicle access to a shoulder.