The Administrative Law Judge issued an Order Vacating Hearing after the Petitioner voluntarily withdrew his request for rehearing.
Key Issues & Findings
Request for Rehearing Withdrawal
Petitioner requested a rehearing based on actions taken by the Respondent after the initial decision. When informed that a rehearing could only address matters occurring prior to the initial petition filing, Petitioner chose to withdraw the request for rehearing and stated intent to file a new petition challenging Respondent’s denial of his submission to build an addition to his house.
Orders: The hearing in this matter is vacated from the calendar of the Office of Administrative Hearings.
The Administrative Law Judge denied the Petitioner's single-issue petition, finding that the Petitioner failed to meet the burden of proof required to establish that the Respondent HOA violated the governing CC&R provisions.
Why this result: Petitioner failed to prove the alleged CC&R violations; specifically, the HOA was found to have the right to enter property for certain conditions (including emergencies or maintenance) but was under no obligation to do so, and the situation was not determined to be a true emergency by the ALJ.
Key Issues & Findings
Whether 10000 North Central Homeowners Association violated the CC&R's Article XII, Section 6 & Article XIII, Section 1(d) & 4.
Petitioner claimed the Association violated specified CC&R sections by refusing to grant access to the neighboring property to determine and resolve the source of a water leak. Petitioner requested an ORDER requiring the Association to allow access. The ALJ found that the CC&Rs grant the HOA the right to enter, but not the obligation, and Petitioner failed to prove an emergency situation or a violation of the CC&Rs.
Orders: Petitioner's petition in this matter was denied.
Briefing Document: Abbass v. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.
The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.
Case Overview
This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.
Case Details
Information
Case Number
20F-H2020057-REL
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association
Administrative Law Judge
Adam D. Stone
Initial Hearing Date
July 28, 2020
Rehearing Date
November 24, 2020
Core Allegation
The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.
Chronology of Key Events
1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.
2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.
3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.
4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.
5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.
6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.
7. August 31, 2020: The Petitioner files a request for a rehearing.
8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.
9. November 24, 2020: The rehearing is conducted.
10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.
Summary of Arguments
Petitioner’s Position (Susan E. Abbass)
• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.
• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.
• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.
• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.
• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.
• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
Respondent’s Position (10000 North Central HOA)
• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.
• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.
• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.
• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.
• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.
Analysis of CC&R Provisions
The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.
Article
Provision Summary
XII, Section 6
Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.
XIII, Section 1(d)
Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.
XIII, Section 4
Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.
Administrative Law Judge’s Findings and Rulings
The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.
Key Findings from the Initial Decision (August 17, 2020)
• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.
• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”
• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.
• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.
• Conclusion: The Petitioner failed to meet her burden of proof.
Key Findings from the Rehearing Decision (December 1, 2020)
• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.
• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.
• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Disposition
IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.
Study Guide – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
——————————————————————————–
Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Blog Post – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
——————————————————————————–
Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) witness for Petitioner
Respondent Side
Blake Johnson(HOA attorney) Brown Olcott, PLLC
Robert Kersten(property manager) witness for Respondent
Kelly Oetinger(HOA attorney) Brown Olcott, PLLC
Neutral Parties
Adam D. Stone(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the Association violated the CC&Rs regarding sewer maintenance or deductible apportionment, finding that the Association properly applied its 2012 Rules and Regulations.
Why this result: Petitioner failed to meet her burden of proof that the Respondent violated the CC&Rs in apportioning a proportionate share of the insurance deductible.
Key Issues & Findings
Dispute over apportionment of insurance deductible following sewer backup damage in a common area.
Petitioner challenged the Association's decision to apportion 43.84% ($10,958.96) of the insurance deductible to her unit following damage caused by a main sewer line blockage in a common area.
Orders: Petitioner’s petition is denied.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Title 33, Chapter 9 of the Arizona Revised Statutes
CC&Rs Sections 3.04, 3.07, 3.09
2012 Rules and Regulations Section 19
Analytics Highlights
Topics: Deductible Apportionment, Sewer Maintenance, Common Area, Condominium Documents, Rules and Regulations
Additional Citations:
ARIZ. REV. STAT. § 32-2102
ARIZ. REV. STAT. § 32-2199 et seq.
ARIZ. REV. STAT. § 32-2199(2)
ARIZ. REV. STAT. § 32-2199.01(D)
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-1092
ARIZ. REV. STAT. § 41-1092.09
Title 33, Chapter 9 of the Arizona Revised Statutes
Audio Overview
Decision Documents
21F-H2120014-REL Decision – 840033.pdf
Uploaded 2026-01-23T17:35:25 (138.3 KB)
Briefing Doc – 21F-H2120014-REL
{
“case”: {
“docket_no”: “21F-H2120014-REL”,
“case_title”: “Lori & James Jordan, Petitioner, vs. The Pines at Show Low Condominium Owners’ Association, Inc., Respondent.”,
“decision_date”: “December 1, 2020”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Lori Jordan”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: “Appeared and testified at the hearing”
},
{
“name”: “James Jordan”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Adam D. Stone”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “Office of Administrative Hearings”,
“notes”: “Administrative Law Judge”
},
{
“name”: “Chuck Stewart”,
“role”: “witness”,
“side”: “petitioner”,
“affiliation”: “The Pines at Show Low Condominium Owners’ Association, Inc. Board”,
“notes”: “Testified for Petitioner; later joined Board and voted against apportionment”
},
{
“name”: “Sean Lissarrague”,
“role”: “board member”,
“side”: “respondent”,
“affiliation”: “The Pines at Show Low Condominium Owners’ Association, Inc.”,
“notes”: “Vice President of the Board; appeared and testified for Respondent”
},
{
“name”: “Judy Lowe”,
“role”: “Commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Received electronic transmission of the decision”
},
{
“name”: “c. serrano”,
“role”: “administrative staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted the electronic decision”
}
]
}
Study Guide – 21F-H2120014-REL
{ “case”: { “docket_no”: “21F-H2120014-REL”, “case_title”: “Lori & James Jordan vs. The Pines at Show Low Condominium Owners’ Association, Inc.”, “decision_date”: “2020-12-01”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can the HOA require a homeowner to pay a portion of the association’s insurance deductible for damage caused by a common element failure?”, “short_answer”: “Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.”, “detailed_answer”: “The ALJ found that the Association’s Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.”, “alj_quote”: “Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.”, “legal_basis”: “Rules and Regulations Section 19”, “topic_tags”: [ “insurance”, “deductible”, “assessments”, “common elements” ] }, { “question”: “Who is responsible for ensuring insurance coverage for the ‘gap’ created by an HOA’s insurance deductible?”, “short_answer”: “The homeowner is responsible for obtaining personal insurance to cover the gap.”, “detailed_answer”: “The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.”, “alj_quote”: “Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.”, “legal_basis”: “Rules and Regulations Section 19(e)”, “topic_tags”: [ “insurance”, “homeowner responsibilities” ] }, { “question”: “If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?”, “short_answer”: “Likely no, as long as the HOA coordinated and accomplished the repairs.”, “detailed_answer”: “The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.”, “alj_quote”: “Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.”, “legal_basis”: “CC&Rs Section 3.09”, “topic_tags”: [ “maintenance”, “repairs”, “negligence” ] }, { “question”: “What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… ‘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”: “Standard of Evidence”, “topic_tags”: [ “legal procedure”, “evidence”, “burden of proof” ] }, { “question”: “Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?”, “short_answer”: “Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.”, “detailed_answer”: “The decision upheld the enforcement of a rule regarding insurance deductibles found in the ‘Rules and Regulations,’ noting that the CC&Rs granted the authority to adopt such rules.”, “alj_quote”: “Section 4.10 of the CC&Rs granted authority to adopt rules ‘for the regulation and operation of the Property…'”, “legal_basis”: “CC&Rs Section 4.10”, “topic_tags”: [ “rulemaking”, “board authority”, “governing documents” ] } ] }
Blog Post – 21F-H2120014-REL
{ “case”: { “docket_no”: “21F-H2120014-REL”, “case_title”: “Lori & James Jordan vs. The Pines at Show Low Condominium Owners’ Association, Inc.”, “decision_date”: “2020-12-01”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “Can the HOA require a homeowner to pay a portion of the association’s insurance deductible for damage caused by a common element failure?”, “short_answer”: “Yes, if the community Rules and Regulations authorize the Board to apportion the deductible based on repair costs.”, “detailed_answer”: “The ALJ found that the Association’s Board had the authority to adopt rules regarding insurance deductibles. Specifically, the rules allowed the Board to apportion the deductible among unit owners and the association based on the proportion of repair costs when damage affects multiple units and common areas, even if the damage originated from a common element like a sewer line.”, “alj_quote”: “Sections 19(b) and (c) appears to have anticipated the present scenario. There was damaged caused to two units and the common area, and Petitioner was apportioned 43.84% of the deductible. From the evidence presented, the Association also properly applied the applicable Rules and Regulations.”, “legal_basis”: “Rules and Regulations Section 19”, “topic_tags”: [ “insurance”, “deductible”, “assessments”, “common elements” ] }, { “question”: “Who is responsible for ensuring insurance coverage for the ‘gap’ created by an HOA’s insurance deductible?”, “short_answer”: “The homeowner is responsible for obtaining personal insurance to cover the gap.”, “detailed_answer”: “The decision highlights that governing documents or rules may explicitly state that owners must be aware of the deductible amount and secure their own coverage to handle that cost if assessed.”, “alj_quote”: “Each Owner needs to be aware of the amount of the Association’s insurance deductible so that the Owner can determine that their personal insurance coverage will cover any gap.”, “legal_basis”: “Rules and Regulations Section 19(e)”, “topic_tags”: [ “insurance”, “homeowner responsibilities” ] }, { “question”: “If the HOA fixes a maintenance issue after it occurs (like a sewer backup), can I still claim they violated their maintenance duty to avoid paying the deductible?”, “short_answer”: “Likely no, as long as the HOA coordinated and accomplished the repairs.”, “detailed_answer”: “The ALJ ruled that because the Association coordinated and completed the repairs once the issue occurred, the homeowner failed to prove that the Association neglected its maintenance duties under the CC&Rs. Therefore, the assessment of the deductible was not invalidated by a failure to maintain.”, “alj_quote”: “Once the sewer backed up, the Association coordinated the repairs and accomplished the same. Petitioner failed to demonstrate that the Association failed to properly attend to the maintenance and/or repair of the sewer lines.”, “legal_basis”: “CC&Rs Section 3.09”, “topic_tags”: [ “maintenance”, “repairs”, “negligence” ] }, { “question”: “What is the burden of proof for a homeowner challenging an HOA decision in an administrative hearing?”, “short_answer”: “The homeowner must prove their case by a ‘preponderance of the evidence’.”, “detailed_answer”: “The homeowner (Petitioner) has the burden to prove that the HOA violated the governing documents or statutes. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “alj_quote”: “In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs… ‘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”: “Standard of Evidence”, “topic_tags”: [ “legal procedure”, “evidence”, “burden of proof” ] }, { “question”: “Can the HOA Board create rules that change how financial liabilities (like deductibles) are handled without amending the CC&Rs?”, “short_answer”: “Yes, if the CC&Rs grant the Board the authority to adopt rules for the regulation of the property.”, “detailed_answer”: “The decision upheld the enforcement of a rule regarding insurance deductibles found in the ‘Rules and Regulations,’ noting that the CC&Rs granted the authority to adopt such rules.”, “alj_quote”: “Section 4.10 of the CC&Rs granted authority to adopt rules ‘for the regulation and operation of the Property…'”, “legal_basis”: “CC&Rs Section 4.10”, “topic_tags”: [ “rulemaking”, “board authority”, “governing documents” ] } ] }
Case Participants
Petitioner Side
Lori Jordan(petitioner) Appeared and testified at the hearing
James Jordan(petitioner)
Chuck Stewart(witness) The Pines at Show Low Condominium Owners' Association, Inc. Board Testified for Petitioner; later joined Board and voted against apportionment
Respondent Side
Sean Lissarrague(board member) The Pines at Show Low Condominium Owners' Association, Inc. Vice President of the Board; appeared and testified for Respondent
Neutral Parties
Adam D. Stone(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate Received electronic transmission of the decision
Other Participants
c. serrano(administrative staff) Transmitted the electronic decision
The Administrative Law Judge concluded that the Respondent HOA acted in compliance with the CC&R’s and was the prevailing party, finding that the HOA had the right to enter property to correct emergency conditions, but was under no obligation to do so. The petition was dismissed following the rehearing.
Why this result: Petitioner failed to sustain her burden to establish a violation by Respondent of Article XII Section 6, and Article XIII Section 1(d) and 4 or the CC&R’s. The ALJ noted that the relief sought (forcing access) may require a different venue or party.
Key Issues & Findings
Whether 10,000 North Central Homeowners Association violated the CCR’s Article XII, Section 6 & Article XIII, Section 1(d) & 4
Petitioner filed a single-issue petition alleging the HOA violated CC&Rs by refusing to grant access to a neighboring property to investigate and remedy a water leak causing damage. The ALJ found the HOA had the right, but not the obligation, to enter the property.
Orders: Petitioner’s petition was denied in the initial decision (August 17, 2020). Upon rehearing, the Administrative Law Judge concluded that there was no violation by the Respondent, and the Respondent was the prevailing party; Petitioner’s appeal was dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 41-2198.01
Analytics Highlights
Topics: HOA Dispute, CC&R Enforcement, Right of Entry, Drainage Issues, Rehearing
Briefing Document: Abbass v. 10000 North Central Homeowners Association
Executive Summary
This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a dispute between homeowner Susan E. Abbass (Petitioner) and the 10000 North Central Homeowners Association (Respondent). The core of the dispute was the Petitioner’s request for the Association to exercise its authority under the community’s Covenants, Conditions, and Restrictions (CC&Rs) to enter a neighboring property to inspect the source of a persistent water leak affecting the Petitioner’s home.
The ALJ ultimately denied the Petitioner’s petition and subsequent appeal. The central conclusion across both hearings was that while the Association’s CC&Rs grant it the right to enter a member’s property under specific circumstances (such as for inspections or emergencies), they do not impose an obligation or duty to do so. The Petitioner failed to meet the burden of proof required to demonstrate that the Association violated any provision of the CC&Rs. The ALJ characterized the situation as a “neighbor versus neighbor dispute” and determined that the Association acted within its business judgment by requiring more definitive proof of the leak’s source before authorizing entry, citing concerns over potential liability.
Case Overview
This matter involves a single-issue petition filed by a homeowner against her Homeowners Association (HOA) with the Arizona Department of Real Estate. The case was referred to the Office of Administrative Hearings for adjudication.
Case Details
Information
Case Number
20F-H2020057-REL
Petitioner
Susan E. Abbass
Respondent
10000 North Central Homeowners Association
Administrative Law Judge
Adam D. Stone
Initial Hearing Date
July 28, 2020
Rehearing Date
November 24, 2020
Core Allegation
The Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) & 4 by failing to grant access to a neighbor’s property to investigate a water leak.
Chronology of Key Events
1. November 14, 2019: Ronald Pick, residing with the Petitioner, discovers the home office carpet is “completely soaked with water.” He determines the drainage issue originates from the neighboring property.
2. November 2019: After the neighbor refuses to cooperate, the Petitioner contacts Robert Kersten, the Association’s Community Manager. Kersten sends a violation notice to the neighbor.
3. January 2020: The Association’s Board of Directors informs Kersten that they will handle the matter directly, and he ceases interaction with the Petitioner.
4. May 5, 2020: The Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500.00 fee.
5. July 28, 2020: The initial evidentiary hearing is held before an Administrative Law Judge.
6. August 17, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding she failed to meet her burden of proof.
7. August 31, 2020: The Petitioner files a request for a rehearing.
8. October 14, 2020: The Commissioner of the Arizona Department of Real Estate grants the request for a rehearing.
9. November 24, 2020: The rehearing is conducted.
10. December 1, 2020: The ALJ issues a final decision, again finding for the Respondent and dismissing the Petitioner’s appeal.
Summary of Arguments
Petitioner’s Position (Susan E. Abbass)
• The Problem: A water leak originating from a neighboring property caused damage, with recurring water intrusion during rainfall.
• Attempted Resolution: The Petitioner and Mr. Pick attempted to work with the neighbor, who was uncooperative on the advice of her insurance company. They then sought the Association’s help to gain access for inspection.
• Core Argument: The Petitioner argued that the water leak constituted an “emergency situation” and that the Association had an obligation under the CC&Rs to grant access to the neighbor’s property for inspection.
• Evidence Provided: The Petitioner provided the Association with all available evidence, including a report from the City of Phoenix.
• Financial Responsibility: The Petitioner offered to pay for a geotechnical engineer and any associated costs for the inspection.
• Legal Basis: The Petitioner claimed the Association violated CC&Rs Article XII, Section 6 and Article XIII, Sections 1(d) and 4.
Respondent’s Position (10000 North Central HOA)
• Actions Taken: The Association, through its manager Robert Kersten, acknowledged the complaint and sent a violation notice to the neighbor regarding improper vegetation. They also contacted the neighbor to request access.
• Core Argument: The Association contended that the CC&Rs do not allow its manager to authorize entry “whenever they feel like it.” Entry requires “reasonable justification” and “some type of proof,” which the Board determined had not been provided by the Petitioner.
• Business Judgment and Liability: Respondent’s counsel argued the Board was exercising its business judgment to avoid potential liability that could arise from granting third-party access to a member’s property without sufficient cause.
• Neighbor’s Actions: The Association stated that, to its knowledge, the neighbor’s insurance company inspected the water flow and determined the neighbor was not at fault.
• Evidence Provided: At the rehearing, the Association submitted photographs (Exhibits K, L, M) purportedly showing a fixed pipe and drainage flowing away from the Petitioner’s property.
Analysis of CC&R Provisions
The dispute centered on the interpretation of specific articles within the Association’s Covenants, Conditions, and Restrictions.
Article
Provision Summary
XII, Section 6
Easement in Favor of Association: Grants the Association and its agents the right to enter Lots for specific purposes, including: (a) inspection of owner maintenance, (c) correction of emergency conditions, and (d) exercising its powers and duties.
XIII, Section 1(d)
Drainage Flow: States that “nothing shall be erected, planted or maintained to impede or interrupt said or normal drainage flow” in patio or yard areas that have been graded for drainage.
XIII, Section 4
Owner Maintenance and Association’s Right to Enter: Requires owners to keep their Lot in good order and repair. If an owner fails, the Association “shall have the right to enter upon said Lot or Patio to correct drainage and to repair, maintain and restore the Lot…” after providing notice to the owner and receiving approval from the Board.
Administrative Law Judge’s Findings and Rulings
The ALJ’s conclusions were consistent across both the initial decision and the rehearing. The Petitioner bore the burden of proving by a “preponderance of the evidence” that the Association violated the CC&Rs.
Key Findings from the Initial Decision (August 17, 2020)
• Right vs. Obligation: The judge’s central finding was that the Petitioner was “incorrect that the Respondent has an ‘obligation’ to enter the property.” The CC&Rs grant the Association a right to enter but do not impose a duty or obligation to do so.
• Lack of “True Emergency”: While Mr. Pick testified about water damage during rain, the judge noted a lack of testimony on the extent of the damage. The fact that over eight months had passed since the initial leak discovery indicated there was “no true emergency situation.”
• Stalemate and Business Judgment: The judge acknowledged the “stalemate” where the Petitioner could not obtain more proof without access, and the Association would not grant access without more proof. The Association’s decision was framed as an exercise of business judgment based on its determination that the submitted proof did not meet its standard for entry.
• Nature of the Dispute: The matter was characterized as a “neighbor versus neighbor dispute,” implying the Association was not the proper party to compel action.
• Conclusion: The Petitioner failed to meet her burden of proof.
Key Findings from the Rehearing Decision (December 1, 2020)
• No New Evidence: The Petitioner “failed to provide new evidence or witness testimony” that would alter the original conclusion.
• Petitioner’s Concession: During the rehearing, the Petitioner “agreed that Respondent does not have an obligation to enter the property, only the right.”
• Respondent’s Compliance: The ALJ concluded that the Association “acted in compliance with the CC&Rs.” It was “receptive to the information provided by Petitioner and requested the neighboring property owners cooperation.” The lack of the neighbor’s full cooperation did not constitute a violation by the Association.
• Jurisdictional Limits: The judge stated that under statute A.R.S. § 32-2199.02(A), an ALJ can only order a party to abide by the community documents. The judge “cannot force the neighbor or the Respondent to grant access to the property.”
• Incorrect Venue: The decision noted that “it appears that Petitioner has or the incorrect venue and possibly party to grant the relief for which it seeks.”
Final Disposition
IT IS ORDERED that Petitioner’s petition in this matter be denied. The final decision from the rehearing on December 1, 2020, named the Respondent as the prevailing party and dismissed the Petitioner’s appeal. This order is binding on the parties, with any further appeal requiring judicial review in the superior court within thirty-five days of the order being served.
Study Guide – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
——————————————————————————–
Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Blog Post – 20F-H2020057-REL-RHG
Study Guide: Abbass v. 10000 North Central Homeowners Association
This study guide provides a review of the administrative case involving Petitioner Susan E. Abbass and Respondent 10000 North Central Homeowners Association. It covers the initial hearing and the subsequent rehearing concerning an alleged violation of the Association’s governing documents. The materials are designed to test and deepen understanding of the case facts, legal arguments, and final rulings.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the case documents.
1. Who are the primary parties in this case, and what are their respective roles?
2. What specific event on November 14, 2019, initiated the dispute between the Petitioner and her neighbor?
3. Identify the specific articles and sections of the Covenants, Conditions, and Restrictions (CC&Rs) that the Petitioner alleged the Respondent violated.
4. According to the Respondent’s property manager, Robert Kersten, what was required before the Association could authorize entry onto a member’s property?
5. What was the central legal distinction made by the Administrative Law Judge regarding the Association’s power to enter a property under the CC&Rs?
6. What was the outcome of the initial hearing on July 28, 2020, and what was the judge’s primary reason for this decision?
7. On what grounds did the Petitioner file her request for a rehearing after the initial decision?
8. Did the Petitioner present new evidence or testimony at the rehearing that changed the outcome? Explain briefly.
9. According to the Administrative Law Judge, what is the legal definition of “preponderance of the evidence”?
10. What limitations on the Administrative Law Judge’s authority are described in A.R.S. § 32-2199.02(A), and how did this affect the final order?
——————————————————————————–
Answer Key
1. The primary parties are Susan E. Abbass, the Petitioner, and the 10000 North Central Homeowners Association, the Respondent. The Petitioner is a property owner and Association member who filed a complaint, while the Respondent is the homeowners’ association responsible for governing the community.
2. On or about November 14, 2019, Ronald Pick, who resides with the Petitioner, discovered that the carpet in their home office was completely soaked with water. He ultimately determined the drainage problem originated from the neighboring property, which sparked the dispute.
3. The Petitioner alleged that the Respondent violated Article XII, Section 6, as well as Article XIII, Sections 1(d) and 4 of the CC&Rs. These sections relate to the Association’s easement rights for inspection and maintenance, rules against impeding drainage flow, and an owner’s duty to keep their lot in good repair.
4. Robert Kersten testified that the Association could not authorize entrance onto another’s property “whenever they feel like it.” He stated there must be “reasonable justification” and “some type of proof” to allow for access, which he determined the Petitioner had not provided.
5. The Administrative Law Judge determined that the CC&Rs give the Respondent the right to enter a property for specific purposes, but they do not impose an obligation to do so. This distinction was crucial, as the judge concluded the Association was not required to act, even if it had the authority.
6. In the initial hearing, the judge denied the Petitioner’s petition. The primary reason was that the Petitioner failed to meet her burden of proof, by a preponderance of the evidence, that the Respondent had violated a provision of the CC&Rs.
7. The Petitioner requested a rehearing on the grounds that the initial findings of fact were “arbitrary, capricious, or an abuse of discretion” and that the decision was “not supported by the evidence or is contrary to law.”
8. No, the Petitioner failed to provide new evidence or witness testimony at the rehearing that demonstrated a violation by the Respondent. The judge concluded that the Petitioner again failed to sustain her burden of proof, leading to the dismissal of her appeal.
9. The judge cites two definitions for “preponderance of the evidence.” The first is “such proof as convinces the trier of fact that the contention is more probably true than not.” The second, from Black’s Law Dictionary, is “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
10. A.R.S. § 32-2199.02(A) states that the judge “may order any party to abide by the statutes, condominium documents, community documents or contract provision at issue.” The judge interpreted this to mean he could not force the Respondent or the neighbor to grant access to the property, as his only power was to order compliance with the CC&Rs, which had not been violated.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, essay-style responses. Use the details from the case documents to construct a thorough and well-supported argument for each prompt. (Answers not provided).
1. Analyze the concept of “burden of proof” as it applies to this case. Explain what the Petitioner needed to demonstrate to prevail and detail the specific reasons cited by the Administrative Law Judge for why she failed to meet this standard in both the initial hearing and the rehearing.
2. Discuss the legal and practical reasoning behind the Respondent’s decision not to grant access to the neighboring property. Evaluate the “business judgment” defense, the potential liability concerns, and the characterization of the issue as a “neighbor versus neighbor dispute.”
3. Examine the distinction between a “right” and an “obligation” as interpreted by the Administrative Law Judge from the CC&Rs. How did this interpretation become the central pillar of the decisions in this case, and what does it reveal about the scope of a homeowners’ association’s power?
4. Trace the procedural history of this case from the initial filing of the petition to the final order after the rehearing. Identify each key date and procedural step, and explain the purpose and outcome of each stage of the administrative hearing process.
5. Imagine you are advising the Petitioner after the final decision. Based on the judge’s conclusions that the Petitioner was in the “incorrect venue and possibly party,” what alternative legal avenues might she pursue to resolve the underlying water leak issue? Use evidence from the text to support your suggestions.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge who presides over administrative hearings, hears evidence, and makes legal rulings and decisions, in this case for the Office of Administrative Hearings.
Arizona Department of Real Estate
The state agency in Arizona authorized by statute to receive and decide petitions for hearings involving disputes between homeowners and their homeowners’ associations.
Burden of Proof
The duty of a party in a legal proceeding to prove a disputed assertion or charge. In this case, the Petitioner had the burden to prove her claims by a preponderance of the evidence.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing legal documents that set up the rules for a planned community or subdivision. The Petitioner alleged the Respondent violated specific articles within these documents.
Easement
A legal right to use another person’s land for a specific, limited purpose. In this case, Article XII Section 6 of the CC&Rs granted an easement to the Association for purposes such as inspection, maintenance, and correction of emergencies.
Jurisdiction
The official power to make legal decisions and judgments. The Arizona Department of Real Estate and the Office of Administrative Hearings had jurisdiction to hear and decide this case pursuant to Arizona Revised Statutes.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, providing an impartial forum for disputes like the one in this case.
Petitioner
The party who files a petition initiating a legal action. In this matter, Susan E. Abbass was the Petitioner.
Preponderance of the Evidence
The standard of proof in most civil cases. It is defined in the text as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”
Prevailing Party
The party who wins a lawsuit or legal action. In the rehearing, the Administrative Law Judge concluded that the Respondent was the prevailing party.
Rehearing
A second hearing of a case to reconsider the issues and decision. A rehearing was granted in this case after the Petitioner claimed the initial decision was arbitrary, capricious, or not supported by evidence.
Respondent
The party against whom a petition is filed. In this matter, the 10000 North Central Homeowners Association was the Respondent.
Case Participants
Petitioner Side
Susan E Abbass(petitioner)
Ronald Pick(witness) witness for Petitioner
Respondent Side
Blake Johnson(HOA attorney) Brown Olcott, PLLC
Robert Kersten(property manager) witness for Respondent
Kelly Oetinger(HOA attorney) Brown Olcott, PLLC
Neutral Parties
Adam D. Stone(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5
Outcome Summary
The ALJ concluded that Foothills demonstrated Respondents' violation of the community governing documents by commencing and continuing construction of a second-story Addition without obtaining the required Architectural Committee approval. Foothills was deemed the prevailing party, and Respondents' appeal was dismissed.
Key Issues & Findings
Unauthorized 2nd story addition
Respondents constructed a second-story Addition to their property without first obtaining approval from the Foothills Architectural Committee, violating the community governing documents.
Orders: Respondents’ appeal is dismissed, and Foothills is deemed the prevailing party with regard to its Petition.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_win
Cited:
CC&Rs Article 7, Section 7.3
CC&R Article 9, Section 9.3
CC&R Article 9, Section 9.4
CC&R Article 9, Section 9.5
Analytics Highlights
Topics: architectural review, cc&r violation, unapproved construction, second story addition, prevailing party
Additional Citations:
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. §§ 32-2199(2)
A.R.S. §§ 32-2199.01(D)
A.R.S. §§ 32-2199.02
A.R.S. § 32-2199.05
A.R.S. § 41-1092
A.R.S. §32-2199.02(B)
A.R.S. § 32-2199.04
A.R.S. § 41-1092.09
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. ADMIN. CODE R2-19-119
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)
Audio Overview
Decision Documents
21F-H2120004-REL Decision – 839537.pdf
Uploaded 2026-01-23T17:34:43 (135.4 KB)
Briefing Doc – 21F-H2120004-REL
Briefing Document: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
Executive Summary
This document synthesizes the findings and decision in the case of Foothills Club West Homeowners Association v. Subrahmanyam & Sudhakar Living Trust (No. 21F-H2120004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core dispute involved the construction of a second-story addition by homeowners (Respondents) without the prior approval of the Homeowners Association (Petitioner), a direct violation of the community’s governing documents.
The Administrative Law Judge (ALJ) found conclusively in favor of the Foothills Club West HOA. The evidence demonstrated that the Respondents not only began construction without seeking approval but continued the project even after receiving a formal denial from the HOA’s Architectural Committee. A subsequent agreement between the parties, wherein the Respondents would demolish the addition in exchange for a waiver of fines, was not honored by the Respondents. The ALJ dismissed the Respondents’ appeal and declared the HOA the prevailing party, validating its authority to enforce the community’s architectural standards as outlined in its Covenants, Conditions, and Restrictions (CC&Rs).
I. Case Overview
• Case Name: Foothills Club West Homeowners Association, Petitioner, v. Subrahmanyam & Sudhakar Living Trust, Respondent.
• Case Number: 21F-H2120004-REL
• Jurisdiction: Arizona Office of Administrative Hearings
• Administrative Law Judge: Kay Abramsohn
• Hearing Date: October 5, 2020
• Decision Date: November 27, 2020
• Central Issue: The petition filed by Foothills HOA on July 24, 2020, alleged that the Respondents constructed an unauthorized and unapproved second-story addition to their property. This action was alleged to be in violation of CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5.
II. Chronology of Key Events
The hearing record established the following undisputed sequence of events:
Oct. 2018
Respondents begin construction of the second-story addition.
Nov. 7, 2018
The City of Phoenix issues a stop-work order, noting a permit is required.
Nov. 7, 2018
Foothills HOA issues a violation notice to the Respondents.
Dec. 17, 2018
Respondents obtain a permit from the City of Phoenix.
Jan. 18, 2019 (approx.)
Respondents submit a request for approval to the Foothills Architectural Committee.
Jan. 18, 2019
Foothills HOA issues a penalty notice to the Respondents, with further notices issued monthly.
Feb. 22, 2019
Foothills HOA issues a formal denial of the application.
Mar. 15, 2019
The City of Phoenix gives final approval to the construction and issues a Certificate of Occupancy.
Post Feb. 2019
The parties reach an agreement for Respondents to demolish the addition in exchange for a waiver of fines.
July 24, 2020
Foothills HOA files its petition, noting Respondents have not complied with the demolition agreement.
Oct. 5, 2020
The administrative hearing is held.
Nov. 27, 2020
The Administrative Law Judge issues the final decision.
III. Arguments of the Parties
A. Petitioner: Foothills Club West HOA
• Violation of CC&Rs: The HOA argued that the Respondents violated CC&R Article 9, Section 9.3 by commencing construction without first obtaining approval from the Architectural Committee.
• Disregard for Denial: The HOA asserted that the Respondents completed the addition after receiving a formal denial of their application.
• Breach of Agreement: The HOA noted that the parties had reached a settlement agreement for demolition, which the Respondents failed to honor. The HOA requested that the Tribunal enforce this agreement.
• Jurisdictional Distinction: The HOA maintained that approval from the City of Phoenix was a separate matter and did not negate the requirement to obtain approval from the HOA as mandated by the governing documents.
B. Respondents: Subrahmanyam & Sudhakar Living Trust
• Initial Ignorance: Respondents claimed they were initially unaware of the HOA approval requirements.
• Attempted Compliance: They argued that once notified, they followed the association’s guidance, met with the Board, and sought approval.
• Vague Denial: Respondents stated they did not understand the meaning of the denial reason, “Fails aesthetics of surrounding community,” or how the addition specifically violated community rules.
• Lack of Due Process: They argued they did not receive a letter indicating an appeal process was available and therefore felt they had not received a final “denial.”
• Demolition Delay: While not disputing the existence of the demolition agreement, Respondents cited COVID-19 issues and safety concerns for their at-risk family as reasons for requesting more time.
• Final Appeal: At the hearing, Respondents reversed their position on the agreement and requested to be allowed to keep the addition.
IV. Analysis of Governing Documents
The decision centered on specific provisions within the Foothills Club West governing documents, which constitute the contract between the HOA and the homeowners.
• CC&R Article 9, Section 9.3 (Architectural Approval): This section was central to the case. It states in pertinent part:
• CC&R Article 9, Section 9.4 (Obligation to Obtain Approval): This provision explicitly sets forth a homeowner’s obligation to secure approval from the Architectural Committee.
• CC&R Article 9, Section 9.5 (Exterior Appearance): This section clarifies that while the HOA cannot limit interior remodeling, it retains jurisdiction over any changes that are “visible from outside such [home] … or affects the exterior appearance of such [home].”
• Amended Architectural Guidelines (2013): These guidelines reinforce the CC&Rs, specifying that a homeowner’s plans must be submitted for approval through the Architectural Committee on a case-by-case basis.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions of law provided a clear framework for the final order.
A. Burden of Proof
The ALJ established that in this proceeding, the petitioner (Foothills HOA) bore the burden of proving by a “preponderance of the evidence” that the Respondents had violated the governing documents. A preponderance of the evidence is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
B. Core Conclusion on Violations
The ALJ found that the HOA had successfully met its burden of proof. The central conclusion of law states:
“The Administrative Law Judge concludes that Foothills has demonstrated Respondents’ violation of the community governing documents, as stated in CC&R Article 9, Sections 9.3, 9.4, and 9.5, because Respondents began to construct a modification, the Addition, to their existing home prior to obtaining approval from Foothills Architectural Committee and, further, Respondents continued to construct the Addition despite receiving a denial of approval from Foothills Architectural Committee.”
This finding affirmed that the Respondents committed two distinct violations: starting work without approval and continuing work after being explicitly denied approval.
VI. Final Order and Implications
Based on the findings of fact and conclusions of law, the ALJ issued a decisive order.
• Order:
• Binding Nature: The decision notes that the order is binding on both parties unless a rehearing is requested. Pursuant to A.R.S. § 41-1092.09, a request for rehearing must be filed with the Commissioner of the Arizona Department of Real Estate within 30 days of the service of the order.
Study Guide – 21F-H2120004-REL
Study Guide: Foothills Club West HOA v. Subrahmanyam & Sudhakar Living Trust
This guide provides a detailed review of the Administrative Law Judge Decision in case No. 21F-H2120004-REL. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a comprehensive glossary of key terms found within the document.
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Short-Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based on the information provided in the source document.
1. Who are the Petitioner and Respondent in this case, and what is their relationship?
2. What was the single issue raised in the petition filed by Foothills Club West Homeowners Association?
3. According to the Petition, which specific articles and sections of the governing documents did the Respondents allegedly violate?
4. What action did the City of Phoenix take on November 7, 2018, regarding the Respondents’ construction project?
5. What reasons did the Foothills Architectural Committee provide for denying the Respondents’ application on February 22, 2019?
6. Prior to the hearing, what agreement did the parties reach in an attempt to resolve the dispute?
7. What was the Respondents’ primary argument for their actions and for their failure to comply with the association’s denial?
8. What is the legal standard of proof required in this case, and which party bore the burden of meeting it?
9. Explain the difference between the City of Phoenix’s approval and the Foothills Architectural Committee’s approval, as argued by the Petitioner.
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The Petitioner is the Foothills Club West Homeowners Association (“Foothills”). The Respondent is the Subrahmanyam & Sheila Sudhakar Living Trust. Their relationship is that of a homeowners’ association and a member homeowner residing within the planned community for 22 years.
2. The single issue raised was that the Respondents constructed an unauthorized and unapproved second-story addition to their property. The construction was completed even after the Foothills Architectural Committee had issued a denial of the project.
3. Foothills alleged that the Respondents violated the CC&Rs Article 7, Section 7.3, and Article 9, Sections 9.3, 9.4, and 9.5. These articles pertain to the rights and obligations of the association and the architectural standards requiring prior approval for modifications.
4. On November 7, 2018, the City of Phoenix issued a stop-work order for the Respondents’ construction project. The order noted that the work being performed required a permit, which had not yet been obtained.
5. The Foothills Architectural Committee denied the application because it needed copies of the City permit, the plans were incomplete, and there was no documentation on the roof line or roofing materials. Furthermore, the denial stated that the project “Fails aesthetics of surrounding community.”
6. The parties came to an agreement wherein the Respondents would complete the demolition of the second-story addition. In exchange, Foothills agreed to waive the penalties that had been imposed on the Respondents for the violation.
7. The Respondents argued that they initially did not know what was required and that they cooperated with the association’s Board once notified. They claimed they did not understand what “Fails aesthetics” meant, did not receive a letter about an appeal process, and therefore did not feel they had received a final “denial.”
8. The legal standard of proof is a “preponderance of the evidence,” which is defined as proof that convinces the trier of fact that a contention is more probably true than not. The Petitioner, Foothills, bore the burden of proving the Respondents’ violation by this standard.
9. Foothills argued that approval from the City of Phoenix and approval from the association’s Architectural Committee were two different and separate matters. Even though the Respondents eventually received a City permit and a Certificate of Occupancy, this did not override the CC&R requirement to first obtain approval from Foothills.
10. The Administrative Law Judge ordered that the Respondents’ appeal be dismissed. The Judge deemed Foothills the prevailing party with regard to its petition, finding that Foothills had demonstrated the Respondents’ violation of the community’s governing documents.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an essay-style answer for each, drawing evidence and support directly from the provided legal decision.
1. Analyze the arguments presented by both the Petitioner (Foothills) and the Respondents at the hearing. Discuss the key evidence and claims each party used to support their position and explain why the Administrative Law Judge ultimately found the Petitioner’s case more persuasive.
2. Explain the distinct roles and jurisdictions of the Homeowners Association’s Architectural Committee and the City of Phoenix regarding the Respondents’ construction project. Why was obtaining a City permit and a Certificate of Occupancy insufficient for the Respondents to proceed without violating the community’s governing documents?
3. Trace the procedural history of case No. 21F-H2120004-REL, from the filing of the initial petition to the final order. Discuss key filings, motions, and deadlines mentioned in the document, including the Respondents’ attempt to consolidate another case.
4. Discuss the significance of the “contract” between the parties, as defined in footnote 15. How do the CC&Rs and the amended Architectural Guidelines function as this contract, and which specific sections were central to the judge’s conclusion that a violation occurred?
5. Evaluate the Respondents’ attempt to justify their failure to demolish the addition as per their agreement with Foothills, citing COVID-19 issues. How did their request at the hearing to keep the addition conflict with their prior agreement, and what does this reveal about their position in the dispute?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official, in this case Kay Abramsohn, who presides over administrative hearings at the Office of Administrative Hearings and issues decisions.
Architectural Committee
A committee appointed by the Foothills HOA, as established by CC&R Article 9, with the authority to review, approve, or disapprove plans for construction, modifications, and additions to properties within the community.
An abbreviation for the Declaration of Covenants, Conditions and Restrictions. These are the governing documents that form a binding contract between the homeowners association and the property owners, outlining their rights and obligations.
Disclosure
The formal process by which parties in a legal case provide evidence, exhibits, and information to each other before a hearing. The deadline for disclosure in this case was September 29, 2020.
Governing Documents
The set of rules for the planned community, including the CC&Rs and the amended Architectural Guidelines, which have the same force and effect as association rules.
Petitioner
The party who initiates a legal proceeding by filing a petition. In this case, the Foothills Club West Homeowners Association.
Petition
The formal document filed with the Arizona Department of Real Estate to initiate a hearing concerning violations of community governing documents. In this case, it was a “single-issue petition.”
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Subrahmanyam & Sheila Sudhakar Living Trust.
Tribunal
The Arizona Office of Administrative Hearings, the state agency authorized by statute to hear and decide contested matters referred to it, such as this dispute.
Blog Post – 21F-H2120004-REL
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21F-H2120004-REL
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This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings concerning a dispute between the Foothills Club West Homeowners Association and the Subrahmanyam & Sudhakar Living Trust. The Petitioner, the Foothills Club West Homeowners Association, filed a petition alleging that the Respondents constructed an unauthorized second-story addition to their property in violation of the association’s governing documents, specifically the CC&Rs Article 9, Sections 9.3, 9.4, and 9.5. The Administrative Law Judge determined that the Respondents violated these community documents by beginning construction prior to obtaining approval from the Foothills Architectural Committee and continuing the work despite receiving a denial. The judge ultimately concluded that Foothills was the prevailing party and dismissed the Respondents’ appeal, effectively upholding the violation finding.
What are the specific governing document violations alleged and proven against the homeowners?
How did the legal and administrative process address the unauthorized construction dispute?
What was the final resolution ordered regarding the unapproved second-story home addition?
Based on 1 source
Case Participants
Petitioner Side
John Halk(HOA attorney) BROWN/OLCOTT, PLLC Represented Petitioner Foothills Club West Homeowners Association
Nathan Tennyson(HOA attorney) BROWN/OLCOTT, PLLC Counsel for Petitioner
Respondent Side
Mary T. Hone(Respondent attorney) Mary T. Hone, PLLC Counsel for Respondent Trustees Subrahmanyam & Sheila Sudhakar
Subrahmanyam Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Sheila Sudhakar(respondent) Subrahmanyam & Sheila Sudhakar Living Trust Trustee of the Respondent Living Trust
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
AHansen(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
djones(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
DGardner(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
ncano(Agency Staff) Arizona Department of Real Estate Recipient of electronic transmission of Order
Petitioners were the prevailing party because the Respondent acknowledged violating the CC&Rs by approving the pergola. Respondent was ordered to refund the $500.00 filing fee, but the request for a civil penalty was denied.
Key Issues & Findings
View Obstruction by Pergola Approval
Petitioners alleged that Respondent, by granting approval in February 2018 for the construction of a pergola on lot 47, violated the CC&Rs requirement that an unobstructed view of the Santa Rita Mountains be maintained for owners of View Lots (Lot 46) and sought a civil penalty.
Orders: Respondent acknowledged the violation, rescinded the pergola approval prior to the Notice of Hearing, and was ordered to pay Petitioners the $500.00 filing fee. A civil penalty was sought but denied.
Administrative Hearing Briefing: Fern & Hedges v. San Ignacio Heights, Inc.
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in the case of Donald S. Fern & Judith A. Hedges v. San Ignacio Heights, Inc. (No. 21F-H2120005-REL). The central conflict involved an allegation by Petitioners that the Respondent, their homeowners’ association, violated its own Covenants, Conditions, and Restrictions (CC&Rs) by approving a pergola on an adjacent property that obstructed their mountain view.
The Respondent initially defended its approval but, after the Petitioners filed a formal complaint, reversed its position, admitted the approval was an error, and rescinded it. Despite this corrective action, the hearing proceeded. The ALJ’s final decision declared the Petitioners the “prevailing party,” as their legal action prompted the resolution. Consequently, the Respondent was ordered to reimburse the Petitioners’ $500 filing fee. However, the ALJ denied the Petitioners’ request for an additional civil penalty, stating they had not met the burden of proof for such an assessment. The decision effectively resolved the core dispute in the Petitioners’ favor while limiting the financial penalty on the Respondent.
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Case Overview
This matter was brought before the Arizona Office of Administrative Hearings concerning a dispute over view obstruction within a planned community.
Case Detail
Information
Case Name
Donald S. Fern & Judith A. Hedges, Petitioner, vs. San Ignacio Heights, Inc., Respondent.
Case Number
21F-H2120005-REL
Presiding Judge
Administrative Law Judge Thomas Shedden
Hearing Date
November 3, 2020
Decision Date
November 20, 2020
Core Allegation
Respondent violated its own CC&Rs, specifically Article VI (D) “View Obstructions,” which mandates that “An unobstructed view of the Santa Rita Mountains shall be maintained for Owners of View Lots.”
Petitioners’ Property
Lot 46, located at 1546 West Acala Street in Green Valley, a designated “view lot.”
Disputed Structure
A pergola constructed on the neighboring Lot 47.
The hearing was conducted without testimony, with the decision based on the administrative record and closing arguments from both parties.
Chronology of Key Events
The dispute unfolded over a period of more than two years, marked by the Respondent’s significant change in position after formal legal action was initiated.
• February 2018: The Respondent’s Architectural Review Committee (ARC) grants approval to the owners of Lot 47 to construct a pergola.
• On or Before July 30, 2018: Petitioners purchase Lot 46. They contend the pergola was built after the previous owners of their lot had moved but before their purchase was finalized.
• December 2019: Petitioners attempt to resolve the issue directly with the owners of Lot 47 but are unsuccessful.
• January 15, 2020: In a letter, the Respondent’s Board informs the Petitioners that it is standing by its February 2018 decision to approve the pergola.
• July 24, 2020: Petitioners file a formal petition with the Arizona Department of Real Estate.
• August 20, 2020: The Respondent’s Board holds a special executive session and determines that the approval of the pergola was “made in error.” The Board rescinds the approval.
• August 25, 2020: The Respondent files its answer to the petition, stating the approval has been rescinded and requesting the Department dismiss the matter.
• October 5, 2020: The Department does not dismiss the matter and issues a Notice of Hearing.
• November 3, 2020: At the hearing, the Respondent’s counsel informs the tribunal that a contractor is scheduled to remove the pergola on the following day.
Central Arguments and Positions
Petitioners (Donald S. Fern & Judith A. Hedges)
• Violation: The pergola on Lot 47 constitutes a view obstruction in direct violation of CC&R Article VI(D).
• Relief Sought: The Petitioners initially sought the removal of the structure. After the Respondent rescinded its approval, the Petitioners argued that the Respondent should be assessed a civil penalty for the violation.
Respondent (San Ignacio Heights, Inc.)
• Initial Defense (Pre-Litigation): The Respondent offered two primary reasons for upholding its initial approval:
1. The previous owners of the Petitioners’ lot (Lot 46) were given notice of the pergola request and did not object at the time of its approval in February 2018.
2. The configuration of the nine lots on West Acala Street makes a “truly unobstructed view” impossible, and for the Petitioners, achieving such a view would require removing eight other houses.
• Post-Petition Position: After the formal petition was filed, the Respondent’s position shifted entirely.
1. Admission of Error: The Respondent formally acknowledged that the approval of the pergola was a mistake and rescinded it.
2. Mootness: The Respondent argued that because it had provided the relief the Petitioners requested (rescission of approval), the matter was resolved and should be dismissed.
Administrative Law Judge’s Decision and Rationale
The ALJ’s decision addressed the acknowledged violation, the status of the parties, and the appropriateness of financial penalties.
Findings on the Violation
• The Respondent explicitly acknowledged its violation of CC&R Article VI(D) by granting approval for the pergola.
• Because the Respondent had already rescinded its approval and the structure was scheduled for removal, the ALJ determined that an order compelling the Respondent to abide by the CC&Rs was unnecessary.
Prevailing Party Status
• Despite the Respondent’s admission of error and corrective actions occurring before the formal hearing, the ALJ designated the Petitioners as the prevailing party.
• The rationale is that the Petitioners’ legal action was the catalyst for the Respondent’s decision to rescind its approval and resolve the violation.
Financial Orders and Penalties
• Filing Fee: Pursuant to ARIZ. REV. STAT. § 32-2199.02(A), the ALJ is required to order the respondent to pay the petitioner’s filing fee if the petitioner prevails. Consequently, the Respondent was ordered to pay the Petitioners’ $500.00 filing fee.
• Civil Penalty: The Petitioners argued for the assessment of a civil penalty against the Respondent. The ALJ denied this request, stating in the Conclusions of Law that “Petitioners have not proven that the Respondent should be assessed a civil penalty.” The decision does not provide further detail on the reasoning for this conclusion.
Legal Framework
• Jurisdiction: The Arizona Department of Real Estate has authority over the matter under ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11, as the case involves alleged violations of community documents.
• Standard of Proof: The Petitioners bore the burden of proof, which is a “preponderance of the evidence” as defined in ARIZ. ADMIN. CODE § R2-19-119.
Final Order
The decision, issued on November 20, 2020, concluded with the following binding orders:
1. IT IS ORDERED that Petitioners Donald S. Fern and Judith A. Hedges are the prevailing party in this matter.
2. IT IS FURTHER ORDERED that Respondent San Ignacio Heights Inc. must pay to Petitioners their filing fee of $500.00 within thirty days of receipt of the Order.
The order is final unless a party files for a rehearing with the Commissioner of the Department of Real Estate within 30 days of service.
Study Guide – 21F-H2120005-REL
Study Guide: Fern & Hedges v. San Ignacio Heights, Inc. (Case No. 21F-H2120005-REL)
This study guide provides a detailed review of the Administrative Law Judge Decision in the matter between Donald S. Fern & Judith A. Hedges (Petitioners) and San Ignacio Heights, Inc. (Respondent). It includes a quiz to test comprehension, essay questions for deeper analysis, and a comprehensive glossary of key terms.
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Short Answer Quiz
Answer the following questions in 2-3 sentences based on the provided source document.
1. Who were the primary parties involved in this case, and what was their relationship?
2. What specific rule from the community’s governing documents was at the center of the dispute?
3. What physical structure caused the dispute, and where was it located relative to the Petitioners’ property?
4. What two arguments did the Respondent initially use to defend its decision to approve the structure?
5. At what point did the Respondent’s Board change its position, and what action did it take?
6. What is the legal standard of proof required in this case, and which party had the burden of meeting it?
7. Despite the Respondent admitting its error before the hearing, why were the Petitioners declared the “prevailing party”?
8. What specific financial penalty was ordered against the Respondent in the final decision?
9. Why did the Administrative Law Judge decide not to levy a civil penalty against the Respondent?
10. What did the Respondent’s counsel state at the hearing regarding the future of the structure in question?
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Answer Key
1. The primary parties were the Petitioners, homeowners Donald S. Fern and Judith A. Hedges, and the Respondent, their homeowners’ association, San Ignacio Heights, Inc. The Petitioners filed a complaint against the homeowners’ association for allegedly violating community rules.
2. The dispute centered on Article VI (D) of the “Second Amended and Restated Declaration of CC&Rs,” titled “View Obstructions.” This rule states that “An unobstructed view of the Santa Rita Mountains shall be maintained for Owners of View Lots.”
3. The dispute was caused by a pergola that the Respondent’s Architectural Review Committee (ARC) approved for construction on lot 47. This lot was adjacent to the Petitioners’ property, lot 46, which is designated as a “view lot” under the CC&Rs.
4. The Respondent initially argued that the approval was valid because (1) the previous owners of lot 46 were notified but did not object, and (2) the configuration of the lots meant a truly unobstructed view was impossible and would require removing eight other houses.
5. The Board changed its position on August 20, 2020, after the Petitioners had already filed their complaint. In a special executive session, the Board determined its February 2018 approval of the pergola was an error and officially rescinded that approval.
6. The standard of proof is a “preponderance of the evidence,” defined as evidence with the most convincing force. The Petitioners bore the burden of proof to show that the alleged violation occurred.
7. The Petitioners were declared the “prevailing party” because their legal action was the cause of the Respondent’s decision to rescind the erroneous approval. Under Arizona statute, a tribunal is required to order the respondent to pay the filing fee to the prevailing party.
8. The Judge ordered the Respondent, San Ignacio Heights Inc., to pay the Petitioners their filing fee of $500.00. The payment was to be made within thirty days of receipt of the order.
9. The Judge did not levy a civil penalty because the decision explicitly states, “Petitioners have not proven that the Respondent should be assessed a civil penalty.”
10. At the November 3, 2020 hearing, the Respondent’s counsel informed the tribunal that the owners of lot 47 had a contractor scheduled to remove the pergola the very next day.
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Essay Questions for Further Study
The following questions are designed for a more in-depth analysis of the case. Answers are not provided.
1. Analyze the timeline of events from the initial approval of the pergola in February 2018 to the final order in November 2020. How did the Respondent’s actions and communications contribute to the escalation of the dispute, and at what points could it have potentially been resolved before reaching a formal hearing?
2. Discuss the legal concept of the “prevailing party” as it applies to this case. Explain why the Petitioners were granted this status and what financial remedy it entitled them to, even though the Respondent had already conceded the central issue before the hearing.
3. Examine the two initial arguments made by the Respondent to justify its approval of the pergola. Based on the case outcome, why were these arguments ultimately insufficient to defend its position, leading the Board to rescind its approval?
4. Based on the “Conclusions of Law” section, explain the role and authority of the Administrative Law Judge in this type of dispute. What specific powers did the judge have according to Arizona statutes, and how were they applied or not applied in the final order?
5. The decision notes that no testimony was taken and the ruling was based on the administrative record. Discuss the potential advantages and disadvantages of this approach for both the Petitioners and the Respondent in this specific case.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Thomas Shedden) who presides over hearings at the Office of Administrative Hearings and renders a binding legal decision and order.
ARIZ. ADMIN. CODE § R2-19-119
The section of Arizona’s administrative rules cited in the decision that establishes the “preponderance of the evidence” as the standard of proof for the matter.
ARIZ. REV. STAT. § 32-2199.02(A)
The Arizona state law that grants the ALJ the authority to order parties to abide by community documents, levy civil penalties, and order a losing respondent to pay the prevailing petitioner’s filing fee.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the Petitioners bore the burden of proof.
An acronym for Covenants, Conditions, and Restrictions. In this case, it refers to the “Second Amended and Restated Declaration of CC&Rs,” the official governing documents for the San Ignacio Heights community.
Civil Penalty
A monetary fine that an ALJ may levy for each violation of a statute or community document. A civil penalty was considered but not assessed in this case.
Department of Real Estate
The Arizona state agency with legal authority over disputes concerning alleged violations of a community’s CC&Rs.
Filing Fee
The fee ($500.00 in this case) required by Arizona statute to file a petition with the Department of Real Estate. The Judge ordered the Respondent to repay this fee to the Petitioners.
Petitioner
The party that initiates a legal proceeding by filing a petition. In this case, homeowners Donald S. Fern and Judith A. Hedges.
Preponderance of the Evidence
The standard of proof required in the hearing. It is defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Prevailing Party
The party that wins a legal case. The Petitioners were declared the prevailing party, which legally entitled them to have their filing fee reimbursed by the Respondent.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the homeowners’ association, San Ignacio Heights, Inc.
View Lot
A specific property designation defined in the CC&Rs, such as the Petitioners’ lot 46, which is guaranteed an unobstructed view of the Santa Rita Mountains.
View Obstructions
The title of Article VI (D) of the CC&Rs, the specific rule that the Petitioners alleged the Respondent violated by approving the construction of the pergola.
Blog Post – 21F-H2120005-REL
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This administrative law judge decision details a dispute between Petitioners Donald S. Fern and Judith A. Hedges and Respondent San Ignacio Heights, Inc. regarding a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). The petitioners alleged that a pergola approved by the Respondent’s Architectural Review Committee was a view obstruction in violation of Article VI(D) of the CC&Rs. Although the Respondent acknowledged its error and rescinded the approval for the pergola before the hearing, the matter was not dismissed. The Administrative Law Judge ultimately found the Petitioners to be the prevailing party and ordered the Respondent to pay the petitioners’ $500 filing fee, though no additional civil penalty was assessed.
What are the core legal and procedural issues decided in this administrative hearing?
How did the Respondent’s actions impact the Petitioners’ prevailing party status and remedy?
What is the significance of the CC&Rs and view obstruction clause in this dispute?
Audio Overview
Video Overview Video Overview
Mind Map Mind Map
Reports Reports
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Quiz Quiz
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Case Participants
Petitioner Side
Donald S Fern(petitioner)
Judith A. Hedges(petitioner)
Lance Leslie(petitioner attorney) Law Office of Susan A Siwek
Respondent Side
Michael S. Shupe(respondent attorney) Goldschmidt | Shupe, PLLC
Neutral Parties
Thomas Shedden(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate Listed as recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Listed as recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Listed as recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Listed as recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Listed as recipient of transmission
The petition was affirmed in part (Complaint #1) and denied in part (Complaint #2). The Respondent HOA was found to have improperly conducted non-privileged business via email/unanimous written consent in violation of A.R.S. § 33-1804. The HOA was ordered to reimburse the $500 filing fee and comply with the statute, but no civil penalty was imposed.
Why this result: Petitioner failed to establish by a preponderance of the evidence the alleged violation concerning the improper use of emergency executive sessions (Complaint #2).
Key Issues & Findings
Non-privileged Association Business Conducted in Closed Session
The HOA improperly conducted association business, which should have been open to members, through unanimous written consent solicited via individual emails during the COVID-19 shutdown, violating the open meeting requirements of A.R.S. § 33-1804.
Orders: Respondent was ordered to comply with the requirements of A.R.S. § 33-1804 going forward and to reimburse Petitioner her $500.00 filing fee for the issue on which she prevailed.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. 33-1804
A.R.S. 10-3821
Analytics Highlights
Topics: Open Meetings, HOA Governance, Unanimous Written Consent, COVID-19, Executive Session
Additional Citations:
A.R.S. 33-1804
A.R.S. 10-3821
A.R.S. 32-2199 et seq.
A.A.C. R2-19-119
Audio Overview
Decision Documents
21F-H2120001-REL Decision – 838004.pdf
Uploaded 2026-01-23T17:34:04 (125.4 KB)
Briefing Doc – 21F-H2120001-REL
Administrative Law Decision Briefing: Morin vs. Solera Chandler Homeowners’ Association
Executive Summary
This briefing synthesizes the findings and rulings from an administrative law case involving a homeowner, Debra K. Morin, and the Solera Chandler Homeowners’ Association, Inc. (HOA). The central issue was whether the HOA Board of Directors violated Arizona’s open meeting law (A.R.S. § 33-1804) by conducting association business and making decisions without open meetings accessible to its members.
The Administrative Law Judge (ALJ) ultimately ruled in favor of the petitioner on her primary complaint. The investigation and subsequent hearings revealed that the HOA Board, citing the challenges of the COVID-19 pandemic, utilized a process of “unanimous written consent” to approve numerous actions. This process, facilitated through individual emails to board members, was found to be an improper substitute for the open meetings required by law. The ALJ concluded that the specific transparency requirements for homeowners’ associations in A.R.S. § 33-1804 supersede the more general provisions for non-profit corporations in A.R.S. § 10-3821, which the HOA had cited as justification.
While the violation was established, no civil penalty was assessed due to the “unprecedented global pandemic.” The HOA was ordered to comply with the open meeting law moving forward and to reimburse the petitioner’s $500 filing fee. A second complaint from the petitioner, alleging the improper use of emergency executive sessions, was not proven and was therefore denied. A rehearing clarified the precise method of the violation—email voting rather than conference calls—but did not alter the final judgment.
Case Background and Allegations
This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed on July 10, 2020. The case centered on the actions of the Solera Chandler HOA’s Board of Directors between March and August 2020.
• Petitioner: Debra K. Morin
• Respondent: Solera Chandler Homeowners’ Association, Inc.
• Case Number: 21F-H2120001-REL
• Key Dates:
◦ Initial Hearing: October 29, 2020
◦ Initial Decision: November 18, 2020
◦ Rehearing: February 25, 2021
◦ Final Decision After Rehearing: March 17, 2021
Petitioner’s Formal Complaints
After being ordered to clarify her initial filing, the petitioner proceeded with two specific alleged violations of A.R.S. § 33-1804:
1. Complaint #1: Non-Privileged Business in Closed Sessions: The petitioner alleged that the HOA Board conducted non-privileged association business in closed sessions by using unanimous written consent. This practice circumvented statutory requirements for providing members with agendas, giving 48-hour notice, and allowing them an opportunity to speak on key issues before the Board took action.
2. Complaint #2: Improper Emergency Executive Sessions: The petitioner alleged that the HOA Board conducted privileged business under the guise of “emergency executive sessions.” This was done without properly identifying the legal exception to the open meeting law, providing an agenda or 48-hour notice, or submitting minutes at the next board meeting that stated the reason for the emergency.
Key Evidence and Factual Findings
The evidence presented centered on the HOA’s governance practices during the initial months of the COVID-19 pandemic.
Respondent’s Justification
The HOA’s defense rested on two main arguments:
• The COVID-19 pandemic made it impossible for the Board to meet in person, necessitating alternative methods to conduct business while protecting the health of directors and members.
• The use of unanimous written consents was authorized under A.R.S. § 10-3821, a statute that permits non-profit corporations to take action without a formal meeting if all directors consent in writing. The HOA acknowledged it had not used this method before the pandemic and did not intend to continue its use.
Unanimous Written Consents
At an open Board of Directors meeting on August 5, 2020, the Board formally ratified a series of actions taken via unanimous written consent during the “Covid 19 Shutdown.” A rehearing clarified the precise mechanism: a community management company would email each board member individually to solicit a “yes” or “no” vote on a proposal. If all votes were “yes,” the Board President would sign the written consent on behalf of the Board.
The actions taken through this process included:
Action Taken by Unanimous Written Consent
March 30, 2020
Approve repair and replacement of the sidewalk and community center entrance.
March 30, 2020
Approve repair and replacement of cool decking surrounding both pools.
April 30, 2020
Approve Kirk Sandquist as a member of the Architectural Review Committee.
April 30, 2020
Approve Tom Dusbabek as a member of the Architectural Review Committee.
May 5, 2020
Approve the Gilbert Road retention basin project, related irrigation replacement, and the addition of 420 tons of granite.
May 8, 2020
Approve replacement of a Carrier 6-ton heat pump.
May 8, 2020
Approve replacement of two Carrier 5-ton heat pumps.
May 27, 2020
Approve hiring Ken Eller to draft architectural drawings.
June 4, 2020
Approve a change to the Design Guidelines at the request of the Architectural Review Committee.
July 1, 2020
Approve the 2020 summer hardwood pruning and removal of trees.
Executive Sessions
The Board held numerous executive (closed) sessions during this period, including on March 13, March 16, March 19, March 24, April 6, April 10, May 4, May 15, May 27, June 24, and August 5, 2020. An “emergency executive session” was held on May 12, 2020. The agendas for these meetings cited specific legal exceptions under A.R.S. § 33-1804(A) as justification for the closure.
Legal Analysis and Rulings
The Administrative Law Judge’s decision hinged on the interpretation and primacy of two competing Arizona statutes.
The Core Statutory Conflict
• A.R.S. § 33-1804 (HOA Open Meeting Law): This statute establishes a strong state policy that all HOA board and member meetings “be conducted openly.” It mandates that members receive at least 48-hours’ notice, be provided with agendas, and be permitted to “attend and speak at an appropriate time.” The statute explicitly directs that any interpretation of its provisions must be construed “in favor of open meetings.”
• A.R.S. § 10-3821 (Action Without Meeting for Non-Profits): This statute, which applies more broadly to non-profit corporations, allows a board of directors to take action without a meeting if the action is approved by one or more written consents signed by all directors.
Ruling on Complaint #1 (Violation Established)
The ALJ concluded that the petitioner had proven by a preponderance of the evidence that the HOA violated the open meeting law. The core of the ruling is that the specific requirements of A.R.S. § 33-1804 for homeowners’ associations must be followed, even if A.R.S. § 10-3821 provides a different mechanism for general non-profits.
The final decision states: “Respondent improperly conducted association business in closed sessions via email rather than in meetings open to the members.” The use of email voting to achieve unanimous consent was deemed a violation because it denied members the notice, agenda, and opportunity to speak that are guaranteed by the HOA open meeting law.
However, the ALJ gave “consideration to the fact that Respondent was faced with an unprecedented global pandemic” and found that “no civil penalty is appropriate given the circumstances.”
Ruling on Complaint #2 (Violation Not Established)
The ALJ found that the petitioner failed to prove by a preponderance of the evidence that the Board conducted improper emergency executive sessions. The decision notes that there was “nothing in the record” to suggest the Board discussed topics outside the legally permitted exceptions for closed sessions, nor was there evidence to suggest the May 12, 2020, meeting was not a genuine emergency.
Final Order and Disposition
The final judgment, issued after the rehearing, is binding on both parties.
• Outcome: The petitioner’s petition was affirmed in part (regarding Complaint #1) and denied in part (regarding Complaint #2).
• Directives to Respondent (HOA):
1. The HOA is ordered to reimburse the petitioner’s $500.00 filing fee.
2. The HOA is directed to comply with the requirements of A.R.S. § 33-1804 going forward.
• Appeal: Any appeal of the final order must be filed for judicial review with the superior court within 35 days from the date of service.
Study Guide – 21F-H2120001-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a detailed review of the administrative case between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent), as detailed in Administrative Law Judge Decisions No. 21F-H2120001-REL and No. 21F-H2120001-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the case’s facts, legal arguments, and outcomes.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, based only on the information provided in the source documents.
1. Who were the primary parties in this case, and what were their respective roles?
2. What was the central accusation in the Petitioner’s first complaint against the Respondent?
3. What two primary justifications did the Respondent provide for its actions during the COVID-19 pandemic?
4. According to the findings of the rehearing, what specific procedure did the Respondent use to obtain “unanimous written consents”?
5. Identify the two main Arizona Revised Statutes (A.R.S.) that were central to the legal dispute and briefly describe the function of each.
6. What was the final ruling on Complaint #1, and what was the judge’s reasoning?
7. Why did the Petitioner fail to prove the allegations in Complaint #2?
8. What specific factual error in the first Administrative Law Judge Decision prompted the Respondent to request a rehearing?
9. What two orders were issued against the Respondent in the final decision?
10. What specific circumstance did the Administrative Law Judge cite as a reason for not imposing a civil penalty on the Respondent?
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Answer Key
1. The primary parties were Debra K. Morin, the Petitioner and homeowner, and the Solera Chandler Homeowners’ Association, Inc., the Respondent. The Petitioner filed a petition with the Arizona Department of Real Estate alleging the Respondent violated state law, while the Respondent defended its actions before an Administrative Law Judge.
2. The Petitioner’s first complaint accused the Solera Homeowners’ Association Board of Directors of conducting non-privileged association business in closed sessions. Specifically, she alleged they used unanimous written consent to take action without providing agendas, giving 48-hour notice, or allowing members an opportunity to speak on key issues.
3. The Respondent argued that the COVID-19 pandemic prevented the Board of Directors from meeting in person to protect the health of members and directors. The Respondent also asserted that its use of unanimous written consents was legally authorized for non-profit corporations under A.R.S. § 10-3821.
4. The rehearing established that an individual from the community management company would email each Board member individually to request a “yes” or “no” vote on a proposal. If all members replied “yes,” the item was considered passed by unanimous consent, and the Board President would sign the formal consent document.
5. The central statutes were A.R.S. § 33-1804 and A.R.S. § 10-3821. A.R.S. § 33-1804 is the state’s open meeting law for homeowners’ associations, requiring meetings to be open to members with proper notice, while A.R.S. § 10-3821 allows the board of a non-profit corporation to take action without a meeting if all directors provide written consent.
6. The judge ruled in favor of the Petitioner on Complaint #1, affirming the violation. The judge reasoned that while A.R.S. § 10-3821 allows for action without a meeting, the more specific requirements of A.R.S. § 33-1804 mandate that all HOA board meetings be open to members, a requirement the Respondent violated by conducting business via email.
7. The Petitioner failed to prove Complaint #2 because she did not establish by a preponderance of the evidence that the Respondent’s executive sessions were improper. The judge found nothing in the record to suggest the Board discussed issues outside the legal exceptions listed in A.R.S. § 33-1804(A) or that the May 12, 2020, session was not a genuine emergency.
8. The Respondent requested a rehearing to correct a finding in Conclusion of Law 8 of the initial decision, which incorrectly stated that the association business at issue was conducted in closed sessions via “conference calls.” The Respondent acknowledged using conference calls for executive sessions but denied using them for the actions taken by unanimous written consent.
9. The Respondent was ordered to reimburse the Petitioner’s $500.00 filing fee for the issue on which she prevailed. Additionally, the Respondent was directed to comply with all requirements of A.R.S. § 33-1804 in the future.
10. The Administrative Law Judge gave consideration to the fact that the Respondent was “faced with an unprecedented global pandemic while balancing the need to comply with the applicable statutes and conduct association business.” Because of these unique circumstances, the judge found that no civil penalty was appropriate.
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Suggested Essay Questions
1. Discuss the conflict between A.R.S. § 33-1804 and A.R.S. § 10-3821 as it relates to the actions of the Solera Chandler Homeowners’ Association. How did the Administrative Law Judge resolve this conflict, and what does this imply about the hierarchy of state laws governing specific entities versus general corporations?
2. Analyze the Respondent’s argument that the COVID-19 pandemic justified their actions. To what extent did the Administrative Law Judge accept this argument, and how did it influence the final order?
3. Explain the legal standard of “preponderance of the evidence” and detail how it was applied to both Complaint #1 and Complaint #2. Why did the Petitioner meet this burden for the first complaint but not the second?
4. Trace the evolution of the case from the initial hearing to the rehearing. What specific finding of fact was corrected, and why was this correction significant for the legal record, even though it did not change the ultimate outcome for either complaint?
5. Based on the text of A.R.S. § 33-1804(F), discuss the stated policy of the state of Arizona regarding homeowner association meetings. How did the Respondent’s actions, specifically the use of email for unanimous consents, contravene this policy?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Tammy L. Eigenheer served as the ALJ.
A.R.S. § 10-3821
An Arizona Revised Statute that allows the board of directors of a non-profit corporation to take action without a formal meeting, provided the action is taken by all directors and evidenced by one or more written consents.
A.R.S. § 33-1804
An Arizona Revised Statute, also known as the open meeting law for planned communities, which mandates that all meetings of an HOA board of directors must be open to all members. It requires 48-hour notice and allows for closed “executive sessions” only for specific, limited purposes.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving her claims.
Executive Session
A portion of a meeting that is closed to association members. Under A.R.S. § 33-1804(A), executive sessions are only permitted for specific reasons, such as receiving legal advice, discussing pending litigation, or addressing confidential personal or financial information.
Open Meeting
A meeting of an HOA’s board of directors that, according to A.R.S. § 33-1804, must be open to all members of the association, who must be permitted to attend and speak.
Petitioner
The party who initiates a legal action or petition. In this case, the Petitioner was homeowner Debra K. Morin.
Preponderance of the Evidence
The standard of proof required in this administrative hearing. It is defined as evidence that is of greater weight or more convincing than opposing evidence, showing that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing of a case to re-examine specific issues or correct errors from an initial decision. A rehearing was granted in this case to clarify how the unanimous written consents were executed.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Solera Chandler Homeowners’ Association, Inc.
Statutory Construction
The process of interpreting and applying legislation. The judge noted that the primary goal is to ascertain the legislature’s intent, first by looking at the statute’s plain language.
Unanimous Written Consent
A procedure, authorized by A.R.S. § 10-3821, where a board takes action without a meeting through written consents signed by all directors. The HOA used this method via individual emails to approve business, which was found to be a violation of HOA open meeting laws.
Blog Post – 21F-H2120001-REL
She Sued Her HOA Over Secret Pandemic Votes—And Won. Here’s What Every Homeowner Needs to Know.
Introduction: The Closed Doors of Your HOA
For many homeowners, it can feel like their Homeowners’ Association (HOA) board makes its most important decisions behind closed doors. You see the results—a new rule, a major repair project, a change in vendors—but the discussion and the vote happen out of sight. While the COVID-19 pandemic forced many organizations to find new ways to operate, for one Arizona HOA, their adaptation to remote work crossed a legal line, sparking a legal challenge from a resident.
The central conflict was straightforward: a homeowner, Debra K. Morin, filed a petition against the Solera Chandler Homeowners’ Association. She alleged they were making official decisions in secret through email, violating state law that guarantees homeowners the right to open meetings. While not all of her claims were affirmed, her primary complaint—that the board was conducting business in secret—led to a landmark decision for homeowner rights. The outcome of her case reveals several surprising and crucial lessons for every person living in an HOA community.
Takeaway 1: An HOA’s Open Meeting Law Trumps General Non-Profit Rules
1. Even a Pandemic Doesn’t Suspend a Homeowner’s Right to an Open Meeting
The Solera Chandler HOA board believed it was acting within the law. They argued that because they were a non-profit corporation, they could make decisions using “unanimous written consents” without a formal meeting. This practice is allowed for many non-profits under a general Arizona statute (A.R.S. § 10-3821). During the pandemic, this seemed like a practical way to conduct business without meeting in person.
However, the Administrative Law Judge ruled against the HOA. The judge’s key finding was that a more specific law takes precedence. The statute governing planned communities, A.R.S. § 33-1804, explicitly requires that all meetings of the board must be open to all members of the association. This is a critical legal lesson: when a specific law exists to govern a specific entity (like the Open Meeting Law for HOAs), it almost always overrides a more general law (like the one for all non-profits).
While the judge acknowledged the challenges of the “unprecedented global pandemic,” this did not excuse the violation, though it was cited as a reason not to issue a civil penalty.
Takeaway 2: “Meeting” by Email Is Still a Secret Meeting
2. A String of Individual Emails Can Constitute an Illegal Meeting
In the initial ruling, the judge found the board conducted business improperly, believing it was done via conference calls. Seizing on this factual error, the HOA challenged the decision and requested a rehearing, arguing their method was different and therefore permissible. In the rehearing, they clarified their actual process: the community management company would email each board member individually to request a ‘yes’ or ‘no’ vote. The HOA argued that because there was no simultaneous group discussion, this process wasn’t technically a “meeting.”
The challenge backfired. The judge’s final decision made it clear that this distinction didn’t matter. Whether by conference call or a series of individual emails, the result was the same: an illegal secret meeting. The method effectively prevented homeowners from observing the board’s process and speaking on agenda items before a vote was taken, as required by law. The HOA won their technical correction but lost the war, as the judge affirmed that the principle of transparency is more important than the specific technology used to circumvent it.
These weren’t minor housekeeping issues. The board was making substantial financial and operational decisions entirely out of public view, including:
• Repair and replacement of the sidewalk and community center entrance.
• Repair and replacement of the cool decking around both pools.
• Appointing new members to the Architectural Review Committee.
• Approving a retention basin project and the purchase of 420 tons of granite.
• Approving the 2020 summer hardwood pruning and removal of trees.
Takeaway 3: The Law Is Built to Favor Transparency
3. The Law Itself Has a Built-in Bias for Openness
The judge’s decision wasn’t just a narrow interpretation; it was guided by a powerful policy statement built directly into the Arizona statute for planned communities. The law itself tells judges, board members, and community managers exactly how it should be interpreted.
The text of A.R.S. § 33-1804(F) leaves no room for doubt:
It is the policy of this state as reflected in this section that all meetings of a planned community, whether meetings of the members’ association or meetings of the board of directors of the association, be conducted openly and that notices and agendas be provided for those meetings that contain the information that is reasonably necessary to inform the members of the matters to be discussed or decided and to ensure that members have the ability to speak after discussion of agenda items, but before a vote of the board of directors or members is taken. Toward this end, any person or entity that is charged with the interpretation of these provisions…shall construe any provision of this section in favor of open meetings.
This is a critical point. The law explicitly directs anyone interpreting it—including an HOA board—to resolve any ambiguity in favor of transparency and homeowner access. The default position is openness.
Takeaway 4: A Single Homeowner Can Force a Change
4. One Determined Homeowner Can Win
This case serves as an empowering lesson for homeowners who feel their board is operating in the shadows. Morin’s persistence paid off, proving that a single homeowner can successfully force a board to follow the law.
Her victory was clear and decisive. The court orders resulted in three key outcomes:
• The judge affirmed her petition, officially recognizing that the HOA had violated the law.
• The HOA was formally ordered to comply with the open meeting requirements of A.R.S. § 33-1804 going forward.
• The HOA was ordered to reimburse Ms. Morin her $500.00 filing fee.
This outcome demonstrates that the system can work. An individual homeowner with a valid complaint can navigate the process and achieve a binding legal victory that forces their HOA board to operate correctly.
Conclusion: Is Your Board Operating in the Open?
The lesson from the Solera Chandler HOA case is simple: transparency in HOA governance is not optional. It is a legal requirement designed to protect the rights of every homeowner to observe and participate in the governance of their community. The convenience of an email vote cannot replace the legal mandate for an open meeting.
Don’t assume your board is operating correctly. Review your meeting minutes. Ask questions about decisions that seem to appear without public discussion. Remember, the law explicitly favors openness, and as Debra Morin proved, it’s an enforceable right.
This case was about secret votes via email, but it highlights a larger principle of transparency. Does your HOA board make it easy for you to know what is being decided and to have your voice heard?
Case Participants
Petitioner Side
Debra K. Morin(petitioner)
Respondent Side
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Also cited as Lydia Linsmeier
Joshua M. Bolen(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Gail Ryan(board member) Solera Chandler Homeowners' Association, Inc. President of Board, resigned August 5, 2020
Kirk Sandquist(ARC member) Solera Chandler Homeowners' Association, Inc. Appointment approved April 30, 2020
Tom Dusbabek(ARC member) Solera Chandler Homeowners' Association, Inc. Appointment approved April 30, 2020
Ken Eller(contractor) Approved to be hired to draft architectural drawings
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Granted Request for Rehearing
The Administrative Law Judge denied the Petition on all issues, concluding that the CCRs contained legally enforceable setback language (Section 21(m)) properly passed in 2017 under A.R.S. § 33-1817(A). The ALJ rejected Petitioner's arguments regarding improper voting procedures, statute of limitations, and selective enforcement.
Why this result: Petitioner failed to establish the alleged violations by a preponderance of the evidence. The CCRs were deemed valid, and the enforcement action was deemed reasonable.
Key Issues & Findings
Challenge to the validity and enforcement of the 10-foot setback requirement regarding the Petitioner's carport and claims of selective enforcement.
Petitioner asserted that the HOA violated CCR 21(m) by improperly adopting the 2017 CCRs and sought resolution on whether the setback language was enforceable, whether forcing Petitioner to move the carport was reasonable, whether selective enforcement was applied, and whether an easement existed. The ALJ concluded the CCRs were valid and enforceable under A.R.S. § 33-1817(A), rejected the selective enforcement claim, and denied the petition.
Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.
The Administrative Law Judge denied the Petition on all issues, concluding that the CCRs contained legally enforceable setback language (Section 21(m)) properly passed in 2017 under A.R.S. § 33-1817(A). The ALJ rejected Petitioner's arguments regarding improper voting procedures, statute of limitations, and selective enforcement.
Why this result: Petitioner failed to establish the alleged violations by a preponderance of the evidence. The CCRs were deemed valid, and the enforcement action was deemed reasonable.
Key Issues & Findings
Challenge to the validity and enforcement of the 10-foot setback requirement regarding the Petitioner's carport and claims of selective enforcement.
Petitioner asserted that the HOA violated CCR 21(m) by improperly adopting the 2017 CCRs and sought resolution on whether the setback language was enforceable, whether forcing Petitioner to move the carport was reasonable, whether selective enforcement was applied, and whether an easement existed. The ALJ concluded the CCRs were valid and enforceable under A.R.S. § 33-1817(A), rejected the selective enforcement claim, and denied the petition.
Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.
The Administrative Law Judge denied the Petition on all issues, concluding that the CCRs contained legally enforceable setback language (Section 21(m)) properly passed in 2017 under A.R.S. § 33-1817(A). The ALJ rejected Petitioner's arguments regarding improper voting procedures, statute of limitations, and selective enforcement.
Why this result: Petitioner failed to establish the alleged violations by a preponderance of the evidence. The CCRs were deemed valid, and the enforcement action was deemed reasonable.
Key Issues & Findings
Challenge to the validity and enforcement of the 10-foot setback requirement regarding the Petitioner's carport and claims of selective enforcement.
Petitioner asserted that the HOA violated CCR 21(m) by improperly adopting the 2017 CCRs and sought resolution on whether the setback language was enforceable, whether forcing Petitioner to move the carport was reasonable, whether selective enforcement was applied, and whether an easement existed. The ALJ concluded the CCRs were valid and enforceable under A.R.S. § 33-1817(A), rejected the selective enforcement claim, and denied the petition.
Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.
Administrative Law Judge Decision: Trezza Irrevocable Trust vs. Haciendas Del Conde Association
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) decision in case number 20F-H2020045-REL, a dispute between the Shannon Lee Trezza Irrevocable Trust (Petitioner) and the Haciendas Del Conde Association (HDCA/Respondent). The ALJ denied the Petitioner’s petition on all issues, finding in favor of the HDCA and deeming it the prevailing party.
The core of the dispute was a carport constructed by the Petitioner in August 2019 without prior approval from the HDCA and in violation of a 10-foot property line setback requirement detailed in the community’s Covenants, Conditions, and Restrictions (CC&Rs). The Petitioner challenged the validity of the CC&Rs, alleged selective enforcement by the HDCA, and argued the setback rule was unreasonable.
The ALJ’s decision rested on several key conclusions:
• The HDCA’s 2017 CC&Rs, including the 10-foot setback rule in Section 21(m), were properly adopted and are legally enforceable. The Petitioner’s challenge to the voting procedure was unfounded, as it incorrectly cited corporate voting law instead of the statute governing planned communities.
• The HOA has the right to enforce rules that are more restrictive than municipal codes, rendering the Pima County code’s zero-foot setback irrelevant.
• There was no evidence of selective enforcement. The HDCA’s denial was based on the substantive setback violation, not the procedural failure to obtain prior approval, and the Petitioner was given an opportunity to cure the issue.
• The Petitioner is solely responsible for any financial burden associated with bringing the carport into compliance, as the situation was created by the failure to seek prior approval before construction.
I. Case Overview
• Case Name: Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde Association
• Case Number: 20F-H2020045-REL
• Forum: Arizona Office of Administrative Hearings
• Presiding Judge: Adam D. Stone
• Date of Decision: November 18, 2020
• Parties:
◦ Petitioner: Shannon Lee Trezza Irrevocable Trust, represented by Trustee Steven Trezza, Esq.
◦ Respondent: Haciendas Del Conde Association (HDCA), represented by Sharon Briggs, Esq.
• Central Issue: The legal enforceability of the HDCA’s CC&Rs, specifically Section 21(m), which prohibits the construction of structures within ten feet of any side or back property line for specified lots. The Petitioner sought relief after the HDCA denied approval for a carport built in violation of this rule.
II. Factual Background
Steven Trezza, trustee for the Petitioner, testified that he has resided at the property for approximately 14 years. In August 2019, he designed and built a carport on the property. Crucially, he admitted to the following:
• He had not read the community’s CC&Rs prior to the HDCA’s denial of his application.
• He failed to obtain prior approval from the HDCA Board for the carport’s construction.
• He failed to obtain a required permit from Pima County.
The HDCA Board President, Brad Johns, testified that he first noticed the carport construction in late August 2019 and placed architectural approval forms on the Petitioner’s door. Johns clarified that the eventual denial was not based on the failure to obtain prior approval but on the substantive violation of the 10-foot setback rule.
On November 14, 2019, the HDCA’s Secretary/Treasurer, Philip Worcester, sent formal correspondence informing the Petitioner of the failure to submit a proposal and providing an additional thirty days to do so before facing penalties.
III. Petitioner’s Core Arguments
The Petitioner, represented by Mr. Trezza, presented several arguments to invalidate the HDCA’s enforcement action:
• Invalidity of the 2017 CC&Rs Vote: Mr. Trezza claimed the 2017 vote that adopted the current CC&Rs was improper.
◦ He argued the ballot was defective under Arizona statute A.R.S. § 10-3708 because it did not provide a place to vote “no.”
◦ He contended that Section 21(m), the setback rule, was not “redlined” in the proposed document sent to homeowners, implying it was not a change and therefore not properly adopted.
• Invalidity of the 1993 Amendment: The language of Section 21(m) originated in a 1993 Amendment. Mr. Trezza argued this amendment was also passed via an invalid vote. He claimed the statute of limitations had not expired on challenging it, as he only became aware of the 1993 Amendment during the course of the present dispute.
• Conflict with Pima County Code: Mr. Trezza testified that the 10-foot setback is incorrect under Pima County code, which he stated requires a zero-foot setback. He argued the HDCA Board had misinterpreted zoning requirements in 1993.
• Selective Enforcement: Mr. Trezza asserted that he was not treated fairly, claiming other HDCA members who had failed to obtain prior approval for projects were later granted it.
• Unreasonable Withholding of Approval: The Petitioner argued that the HDCA’s approval was unreasonably withheld because the carport was not unattractive, did not devalue community property, and did not violate county code.
IV. Respondent’s (HDCA) Position and Testimony
The HDCA countered each of the Petitioner’s claims through legal arguments and witness testimony:
• Validity of the CC&Rs: Ms. Briggs, counsel for the HDCA, argued that the 2017 vote was valid pursuant to A.R.S. § 33-1817, the statute governing planned communities. This statute requires only an “affirmative vote or written consent,” which was obtained. She asserted that the “redlining” argument was irrelevant because the entire CC&Rs document was presented to homeowners for a vote, and they could have rejected it if they disagreed with any provision, changed or not. This rendered the challenge to the 1993 amendment moot.
• Absence of Discrimination:
◦ HDCA President Brad Johns testified that the denial was based solely on the 10-foot setback violation, not the failure to obtain prior approval.
◦ He stated that the Board had successfully worked with other homeowners who failed to seek prior approval, but Mr. Trezza’s case was different because it involved a stand-alone structure rather than an addition.
◦ Both Mr. Johns and Secretary/Treasurer Philip Worcester testified that they had not known or interacted with Mr. Trezza prior to this issue, negating any claim of personal bias.
• Fair Process and Opportunity to Cure: Mr. Worcester testified that he complied with multiple document requests from Mr. Trezza and offered on at least two occasions for Mr. Trezza to accompany him to the association’s storage facility, an offer that was not accepted. The Board provided a 30-day window for the Petitioner to submit a formal proposal to resolve the issue.
V. Administrative Law Judge’s Conclusions of Law and Rationale
The ALJ methodically rejected each of the Petitioner’s arguments and found the HDCA’s position to be supported by law and evidence.
1. The CC&Rs Contain Legally Enforceable Setback Language:
◦ The Judge concluded that the 2017 CC&Rs vote was proper. The Petitioner’s reliance on A.R.S. § 10-3708 (corporate voting) was “unfounded.” The correct and controlling statute is A.R.S. § 33-1817(A) (planned community voting), which only requires an “affirmative vote or written consent.”
◦ The argument that Section 21(m) was not “redlined” was deemed “not persuasive,” as the entire proposed document was provided to members, who voted to accept the CC&Rs as written.
◦ An HOA may require different, and more restrictive, setback requirements than a municipality. Therefore, the Pima County code does not override the CC&Rs.
2. The Petitioner is Bound by the CC&Rs:
◦ The Judge found the argument regarding the 1993 Amendment and the statute of limitations “unpersuasive.” Upon purchasing the property, the Petitioner became bound by the CC&Rs in existence at that time, “whether he read them or not.”
3. No Selective Enforcement Occurred:
◦ Evidence showed that the Board “routinely allowed homeowners to provide a chance to cure their failure to obtain prior approval.”
◦ Testimony from Mr. Johns and Mr. Worcester clearly established that the denial was not due to the lack of prior approval but the substantive setback violation. The Petitioner was offered the same opportunity to cure the problem as others but chose not to.
4. The Cost of Compliance is Reasonable:
◦ The Judge concluded that it is reasonable to compel the Petitioner to comply with the setback requirement, regardless of the cost. The decision states: “it brought the additional expenses upon itself for failure to obtain prior approval.” By not seeking approval beforehand, the Petitioner, not the HDCA, created the financial burden of a remedy.
VI. Final Order and Implications
Based on the foregoing conclusions, the Administrative Law Judge issued the following order on November 18, 2020:
• The Petition filed by the Shannon Lee Trezza Irrevocable Trust is denied on all issues.
• The Respondent, Haciendas Del Conde Association, is deemed the prevailing party.
• No Civil Penalty is found to be appropriate in this matter.
The order is binding on the parties unless a rehearing is requested with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020045-REL
Study Guide: Trezza Irrevocable Trust v. Haciendas Del Conde Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in case number 20F-H2020045-REL, concerning a dispute between the Shannon Lee Trezza Irrevocable Trust and the Haciendas Del Conde Association. It includes a quiz with an answer key to test factual recall, essay questions to encourage deeper analysis, and a glossary of key terms found within the legal decision.
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 complete sentences based on the provided case document.
1. Who were the primary parties involved in this case, and what were their roles?
2. What specific provision of the community’s governing documents was at the center of the dispute?
3. What structure did the Petitioner build, and what two key approvals were initially neglected?
4. What was the Petitioner’s primary argument for why the 2017 vote on the CCRs was improper?
5. How did the Petitioner challenge the validity of the original 1993 Amendment concerning the setback?
6. What was the Respondent’s reasoning for denying the carport application, separate from the failure to get prior approval?
7. How did the Administrative Law Judge (ALJ) distinguish between the two Arizona statutes cited regarding voting procedures?
8. What was the ALJ’s conclusion regarding the Petitioner’s claim of selective enforcement?
9. Why did the ALJ rule that it was reasonable to force the Petitioner to bear the cost of moving the carport?
10. What was the final order issued by the Administrative Law Judge in this matter?
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Answer Key
1. The Petitioner was the Shannon Lee Trezza Irrevocable Trust, represented by Trustee Steven Trezza, Esq. The Respondent was the Haciendas Del Conde Association (HDCA), a Homeowners Association represented by Sharon Briggs, Esq.
2. The dispute centered on the Haciendas Del Conde Association’s Covenants, Conditions, and Restrictions (CCRs), specifically Section 21(m). This section mandates a ten-foot setback from any side or back property line for structures on specific lots.
3. The Petitioner, Mr. Trezza, designed and built a carport in August 2019. He failed to obtain prior approval from the HOA’s Board and also failed to obtain a required permit from Pima County.
4. The Petitioner argued that the ballot used for the 2017 vote was defective under A.R.S. § 10-3708 because it did not provide an option to vote “no.” He contended this made the entire vote improper and the resulting CCRs invalid.
5. The Petitioner argued that the 1993 Amendment, which first introduced the 10-foot setback, was itself based on an invalid vote. He also argued that because this language was not “redlined” as a change in the 2017 CCRs, homeowners were not properly notified of its adoption.
6. Brad Johns, President of the HDCA, testified that the denial was not due to the lack of prior approval but specifically because the carport violated the 10-foot setback requirement outlined in Section 21(m) of the CCRs.
7. The ALJ concluded that the Petitioner’s reliance on A.R.S. § 10-3708 was unfounded because it applies to corporation voting. The judge determined that A.R.S. § 33-1817(A), which governs planned community voting and only requires an “affirmative vote or written consent,” was the controlling statute.
8. The ALJ concluded there was no selective enforcement. Evidence showed that the Board routinely worked with other homeowners who failed to get prior approval, and that Mr. Trezza was not discriminated against but was given an opportunity to cure the problem.
9. The ALJ reasoned that by failing to seek prior approval before construction, the Petitioner, not the HDCA, created the expenses required to remedy the situation. Therefore, it was reasonable to make the Petitioner comply with the CCRs, regardless of the cost.
10. The Administrative Law Judge ordered that the Petition be denied on all issues. The judge further ordered that the Respondent (Haciendas Del Conde Association) be deemed the prevailing party in the matter.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and legal reasoning presented in the case document.
1. Analyze the Petitioner’s arguments regarding the invalidity of the 1993 Amendment and the 2017 CCRs. Why did the Administrative Law Judge find these arguments, including the “redlining” and statute of limitations claims, to be unpersuasive?
2. Discuss the concept of “selective enforcement” as an affirmative defense in this case. What evidence did the Petitioner and Respondent present on this issue, and how did the judge ultimately rule?
3. Examine the legal distinction made between A.R.S. § 10-3708 and A.R.S. § 33-1817(A). Explain how this distinction was critical to the judge’s conclusion about the validity of the 2017 CCRs and the enforceability of Section 21(m).
4. Evaluate the significance of the Petitioner’s failure to obtain prior Board and Pima County approval for the carport. How did this action impact the judge’s ruling, particularly concerning the reasonableness of the enforcement costs and the allegation of unfair treatment?
5. Compare and contrast the testimony presented by the Petitioner’s side (Steven Trezza, Phil Rosenberg) with the testimony from the Respondent’s side (Brad Johns, Philip Worcester). How did their differing accounts shape the central issues of the hearing?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions, in this case, for the Office of Administrative Hearings.
Affirmative Defense
A set of facts or legal arguments presented by the respondent that, if proven, can defeat or mitigate the legal consequences of the petitioner’s claim. In this case, “selective enforcement” was an affirmative defense.
A.R.S.
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Covenants, Conditions, and Restrictions. These are legally binding rules and regulations that govern a planned community or subdivision, which property owners agree to abide by upon purchasing property.
Easement
A legal right to use another person’s land for a specific purpose. The Petitioner unsuccessfully argued for an easement for the carport under Section 33 of the CCRs.
HOA (Homeowners Association)
An organization in a planned community that makes and enforces rules for the properties and its residents. The Haciendas Del Conde Association is the HOA in this case.
Petitioner
The party who files a petition initiating a legal action. In this case, it was the Shannon Lee Trezza Irrevocable Trust.
Preponderance of the Evidence
The standard of proof in civil cases, meaning the evidence shows that a contention is more likely true than not. The Petitioner bore this burden to prove their claims.
Redlined
A method of marking a document to show additions, deletions, or changes, typically by underlining new text and striking through deleted text. The Petitioner argued a lack of redlining was misleading.
Respondent
The party against whom a petition is filed. In this case, it was the Haciendas Del Conde Association.
Setback
The minimum required distance that a building or other structure must be located from a property line, street, or other feature. The dispute centered on a 10-foot setback requirement.
Statute of Limitations
A law that sets the maximum time after an event within which legal proceedings may be initiated. The Petitioner argued the statute of limitations had not run for challenging the 1993 Amendment.
Trustee
An individual or entity that holds and administers property or assets for the benefit of a third party. Steven Trezza, Esq. appeared as Trustee for the Petitioner.
Variance
An officially granted exception to zoning ordinances or CCRs. The Petitioner unsuccessfully sought a variance for the carport.
Blog Post – 20F-H2020045-REL
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20F-H2020045-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings concerning a dispute between the Shannon Lee Trezza Irrevocable Trust (Petitioner) and the Haciendas Del Conde Association (Respondent). This Homeowners Association (HOA) Dispute arose because the Petitioner constructed a carport without prior approval, violating the community’s Covenants, Conditions, and Restrictions (CCR’s), specifically a ten-foot setback requirement in Section 21(m). The Petitioner argued that the setback language was unenforceable due to flawed voting procedures in both 1993 and 2017 when the CCR’s were adopted, and also claimed selective enforcement. The Administrative Law Judge ultimately found that the CCR’s were legally enforceable and properly adopted, concluding that the Petitioner must comply with the setback rule, and denied all issues raised in the petition.
Case Participants
Petitioner Side
Stephen Trezza(Trustee) Shannon Lee Trezza Irrevocable Trust Appeared for Petitioner; Testified on behalf of Petitioner
Philip Rosenberg(witness) Testified for Petitioner
Respondent Side
Sharon Briggs(HOA attorney) Haciendas Del Conde Association
Brad Johns(board member) Haciendas Del Conde Association President of HDCA; Testified for Respondent
Philip Worcester(board member) Haciendas Del Conde Association Secretary/Treasurer of HDCA; Testified for Respondent
Neutral Parties
Adam D. Stone(ALJ) OAH
Judy Lowe(Commissioner) ADRE Order transmitted electronically to
