Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on November 18, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-18
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Shannon Lee Trezza Irrevocable Trust	Counsel	—
Respondent	Haciendas Del Conde Association	Counsel	Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

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.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1817(A)
A.R.S. § 10-3708
CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 10-3708
A.R.S. § 32-2199

Video Overview

Audio Overview

Decision Documents

20F-H2020045-REL Decision – 837850.pdf

Uploaded 2026-01-23T17:31:47 (132.2 KB)

Briefing Doc – 20F-H2020045-REL

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.

——————————————————————————–

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

📔

20F-H2020045-REL

1 source

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

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on November 18, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-18
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Shannon Lee Trezza Irrevocable Trust	Counsel	—
Respondent	Haciendas Del Conde Association	Counsel	Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

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.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1817(A)
A.R.S. § 10-3708
CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 10-3708
A.R.S. § 32-2199

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on November 18, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-18
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Shannon Lee Trezza Irrevocable Trust	Counsel	—
Respondent	Haciendas Del Conde Association	Counsel	Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

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.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1817(A)
A.R.S. § 10-3708
CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 10-3708
A.R.S. § 32-2199

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on November 18, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-18
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Shannon Lee Trezza Irrevocable Trust	Counsel	—
Respondent	Haciendas Del Conde Association	Counsel	Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

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.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1817(A)
A.R.S. § 10-3708
CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 10-3708
A.R.S. § 32-2199

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on November 18, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-18
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Shannon Lee Trezza Irrevocable Trust	Counsel	—
Respondent	Haciendas Del Conde Association	Counsel	Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

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.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1817(A)
A.R.S. § 10-3708
CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 10-3708
A.R.S. § 32-2199

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on November 18, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-18
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Shannon Lee Trezza Irrevocable Trust	Counsel	—
Respondent	Haciendas Del Conde Association	Counsel	Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

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.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1817(A)
A.R.S. § 10-3708
CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 10-3708
A.R.S. § 32-2199

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on November 18, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-18
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Shannon Lee Trezza Irrevocable Trust	Counsel	—
Respondent	Haciendas Del Conde Association	Counsel	Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

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.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1817(A)
A.R.S. § 10-3708
CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 10-3708
A.R.S. § 32-2199

Shannon Lee Trezza Irrevocable Trust v. Haciendas Del Conde

Posted on November 18, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	20F-H2020045-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-11-18
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Shannon Lee Trezza Irrevocable Trust	Counsel	—
Respondent	Haciendas Del Conde Association	Counsel	Sharon Briggs, Esq.

Alleged Violations

CCRs Section 21(m)

Outcome Summary

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.

Orders: The Petition was denied on all issues. Respondent was deemed the prevailing party. No Civil Penalty was found appropriate.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 32-2199 et seq.
A.R.S. § 33-1817(A)
A.R.S. § 10-3708
CCRs Section 21(m)

Analytics Highlights

Topics: CCR_enforceability, setback_violation, voting_validity, selective_enforcement, carport

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 10-3708
A.R.S. § 32-2199

Keith D Smith v. Sierra Foothills Condominium Association

Posted on November 16, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	21F-H2120003-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2021-06-03
Administrative Law Judge	Thomas Shedden
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Keith D Smith	Counsel	—
Respondent	Sierra Foothills Condominium Association	Counsel	Stuart Rayburn

Alleged Violations

CC&R section 7.1(C)
ARIZ. REV. STAT. section 33-1248

Outcome Summary

The petition was dismissed as the Petitioner failed to prove by a preponderance of the evidence that the Association violated CC&R section 7.1(C) or ARIZ. REV. STAT. section 33-1248. The rule limiting sign use was deemed reasonable.

Why this result: Petitioner failed to meet the burden of proof on both issues.

Key Issues & Findings

Alleged unreasonable discrimination in adopting rules regarding common elements (monument sign)

Petitioner alleged the Association violated CC&R 7.1(C) by adopting a rule limiting the use of the common element monument sign to only owners in Building B, arguing this was unreasonable discrimination against Building A owners.

Orders: Petition dismissed for this issue.

Filing fee: $250.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

CC&R section 7.1(C)
CC&R section 6.26(a)
ARIZ. REV. STAT. section 33-1217

Alleged open meeting law violation at the June 10, 2020 Board meeting

Petitioner alleged the Board violated open meeting laws by communicating via email and reaching a decision prior to the June 10, 2020 meeting, claiming the President called for a vote without discussion.

Orders: Petition dismissed for this issue.

Filing fee: $250.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. section 33-1248

Analytics Highlights

Topics: Condominium, Commercial HOA, Signage rules, Open meeting law, Discrimination

Additional Citations:

ARIZ. REV. STAT. section 33-1248
CC&R section 7.1(C)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
ARIZ. REV. STAT. § 41-1092.07(F)(6)

Audio Overview

Decision Documents

21F-H2120003-REL Decision – 837073.pdf

Uploaded 2026-01-23T17:34:29 (103.9 KB)

Briefing Doc – 21F-H2120003-REL

Smith v. Sierra Foothills Condominium Association: A Briefing on the Monument Sign Dispute

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between Keith D. Smith, a commercial condominium unit owner, and the Sierra Foothills Condominium Association. The core of the dispute is a rule enacted by the Association on June 10, 2020, which restricts the use of a common element monument sign exclusively to unit owners in one of the property’s two buildings.

Mr. Smith filed a petition alleging two primary violations:

1. Unreasonable Discrimination: The sign rule violated the Association’s Covenants, Conditions, and Restrictions (CC&Rs) by unfairly discriminating against owners in his building.

2. Open Meeting Law Violation: The Association’s Board violated state open meeting laws by allegedly deciding on the rule via email before the public meeting and calling for a vote without discussion.

The Administrative Law Judge dismissed Mr. Smith’s petition in an initial decision on November 16, 2020, and again after a rehearing in a final decision on June 3, 2021. The judge concluded that Mr. Smith failed to meet his burden of proof on both claims. The sign rule was deemed a reasonable measure to address the differing visibility and street frontage of the two buildings. The allegation of an open meeting law violation was dismissed due to a lack of substantial evidence from the petitioner and credible contradictory testimony from the Association’s representatives.

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Case Overview

This matter was adjudicated by the Office of Administrative Hearings for the Arizona Department of Real Estate. The case involves a petition filed by a unit owner against his condominium association regarding rules governing common elements.

Detail

Description

Case Numbers

21F-H2120003-REL (Original)
21F-H2120003-REL-RHG (Rehearing)

Petitioner

Keith D. Smith (Owner in Building A)

Respondent

Sierra Foothills Condominium Association

Presiding Judge

Administrative Law Judge Thomas Shedden

Key Dates

July 24, 2020: Petition filed by Keith D. Smith.
October 26, 2020: Original hearing conducted.
November 16, 2020: Initial decision issued, dismissing the petition.
June 3, 2021: Rehearing decision issued, reaffirming dismissal.

Central Issues and Allegations

The dispute centered on a monument sign with space for only five businesses at a commercial condominium property consisting of two buildings, Building A and Building B.

1. The Monument Sign Rule (CC&R Violation)

At a meeting on June 10, 2020, the Association’s Board adopted a rule limiting the use of the monument sign to unit owners in Building B. Mr. Smith, an owner in Building A, alleged this violated the Association’s governing documents.

• Petitioner’s Allegations:

◦ The rule violates CC&R Section 7.1(C), which states that rules “shall not unreasonably discriminate among Owners and Occupants.”

◦ The rule violates the principle of CC&R Section 6.26(a), which requires use restrictions within Article 6 of the CC&Rs to be applicable to all occupants.

◦ As an owner, Mr. Smith holds an undivided interest in the common elements, meaning no owner should have exclusive use of the sign. He argued the rule amounted to an improper “partition” of a common element.

• Respondent’s Position:

◦ The rule is reasonable and non-discriminatory because it addresses a fundamental inequity in property layout: Building A has street frontage for signage, while Building B does not.

◦ The limited space on the monument sign (five slots) necessitates a managed approach to its use.

◦ While initially questioning if the sign was a common element, the Association waived this argument by acknowledging it as such in its official answer.

2. The June 10, 2020 Board Meeting (Open Meeting Law Violation)

Mr. Smith alleged that the Board’s conduct during the meeting at which the rule was passed violated Arizona’s open meeting law, specifically ARIZ. REV. STAT. section 33-1248.

• Petitioner’s Allegations:

◦ The Association’s president called for a vote on the new rule “without discussion,” implying a decision had already been made.

◦ Mr. Smith asserted that Board members must have “Obviously communicated with each other via email and reached their decision without ever hearing my argument.”

• Respondent’s Position:

◦ Association President Stuart Rayburn and witness Harold Bordelon provided “credible testimony” that a “protracted discussion lasting about an hour and a half” occurred before the vote.

◦ They testified that Mr. Smith himself spoke for approximately twenty minutes during this discussion.

Evidence and Proposed Solutions

• Petitioner’s Evidence: Mr. Smith testified on his own behalf and submitted an email from the City of Phoenix regarding signage rules. He also presented two estimates for altering the monument sign to accommodate more businesses—one by reducing the size of existing signs (which he offered to fund) and another by enlarging the monument itself.

• Respondent’s Evidence: The Association presented testimony from its president, Stuart Rayburn, and Harold Bordelon. They submitted Section 705 of the City of Phoenix’s Zoning Ordinance, which they argued showed flexibility in the sign code. Mr. Bordelon testified that some of Mr. Smith’s proposed alterations to the sign did not comply with the city code.

Administrative Law Judge’s Rulings and Rationale

The ALJ’s decisions in both the original hearing and the rehearing were consistent, leading to the dismissal of Mr. Smith’s petition. The core rationale rested on the petitioner’s failure to meet the required burden of proof.

Original Decision (November 16, 2020)

The initial ruling found decisively in favor of the Association.

• On the CC&R Violation: The ALJ concluded that Mr. Smith did not prove a violation of CC&R Section 7.1(C) for two primary reasons:

1. The rule was not unreasonable, as it rationally addressed the physical disadvantage of Building B, which “does not have street frontage,” compared to Building A, which does.

2. Mr. Smith’s reliance on CC&R Section 6.26(a) was misplaced, as “by its express terms, CC&R section 6.26 applies only to CC&R Article 6, and not Article 7,” where the Board’s authority to make rules resides.

• On the Open Meeting Law Violation: The ALJ found the allegation unsupported.

◦ Mr. Smith “offered no substantial evidence” for his claim of pre-meeting communication.

◦ His testimony that the Board called for a vote “without discussion is proven to be in error” based on credible opposing testimony.

Rehearing Decision (June 3, 2021)

Mr. Smith requested a rehearing on several grounds, including alleged irregularities, errors of law, and claims that the findings were arbitrary or not supported by evidence. The ALJ granted the rehearing but ultimately reaffirmed the original decision.

• Scope of the Rehearing: The judge clarified that the rehearing was limited to the two original issues and could not consider new evidence or allegations not raised in the initial petition.

◦ Evidence that Mr. Smith claimed to have (an email supporting the open meeting violation) was not considered because it was not offered at the original hearing.

◦ Arguments related to new statutes (e.g., ARIZ. REV. STAT. section 33-1217 on partitioning common elements) were dismissed as they were not part of the original petition.

• Reaffirmation of Rulings:

◦ The judge reiterated that CC&R Section 6.26(a) explicitly limits its effect to Article 6. He noted that Mr. Smith himself had argued the CC&Rs “should be read and applied as one continuous document unless the document clearly states otherwise,” which it did in this case.

◦ The conclusion that the sign rule was reasonable was upheld.

◦ The dismissal of the open meeting law claim was reaffirmed, as Mr. Smith still presented no substantial evidence, instead relying on a “rhetorical question” about how a vote could be called without prior communication.

Key Legal Standards Applied

The ALJ’s decisions were guided by specific legal principles and administrative codes.

Standard

Application in the Case

Burden of Proof

The Petitioner, Keith D. Smith, bore the burden to prove his allegations by a “preponderance of the evidence.” The ALJ concluded this standard was not met.

Preponderance of the Evidence

Defined as evidence with the “most convincing force” that is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”

Substantial Evidence

The standard required for an ALJ’s decision, defined as evidence a “reasonable mind would use to reach a conclusion.”

Scope of Adjudication

The hearing and subsequent decisions were strictly limited to the issues formally raised and paid for in the original petition, pursuant to ARIZ. REV. STAT. § 41-1092.07(F)(6).

Admissibility of Evidence

Evidence not presented at the original hearing cannot be considered in a rehearing, as established by ARIZ. ADMIN. CODE § R2-19-115.

Study Guide – 21F-H2120003-REL

Study Guide: Smith v. Sierra Foothills Condominium Association

This guide provides a comprehensive review of the administrative case Keith D. Smith v. Sierra Foothills Condominium Association, based on the initial Administrative Law Judge Decision and the subsequent Decision on Rehearing. It is designed to test and deepen understanding of the facts, legal arguments, and outcomes of the proceedings.

Quiz: Short Answer Questions

Instructions: Answer the following questions in 2-3 sentences based on the provided case documents.

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

2. What were the two central allegations Keith D. Smith made against the Sierra Foothills Condominium Association in his petition?

3. What specific action did the Association’s Board take on June 10, 2020, that initiated this dispute?

4. What justification did the Association provide for creating a rule that exclusively benefited the owners of units in Building B?

5. On what grounds did the Administrative Law Judge (ALJ) reject Mr. Smith’s argument that the sign rule violated CC&R section 6.26(a)?

6. What was the “preponderance of the evidence” standard, and who bore the burden of meeting it in this case?

7. Why was Mr. Smith’s allegation of an open meeting law violation dismissed in the original hearing?

8. What were the primary grounds Mr. Smith cited when requesting a rehearing of the initial decision?

9. In the rehearing, Mr. Smith mentioned having an email that supported his open meeting law claim. Why did the ALJ refuse to consider this evidence?

10. What was the final outcome of both the original hearing on October 26, 2020, and the subsequent rehearing decision on June 3, 2021?

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Quiz Answer Key

1. The primary parties were Keith D. Smith, the Petitioner, and the Sierra Foothills Condominium Association, the Respondent. Mr. Smith, an owner of a unit in Building A, filed a petition alleging violations by the Association, which manages the common elements of the condominium complex.

2. Mr. Smith alleged that the Association had violated CC&R section 7.1(C) by creating an unreasonable and discriminatory rule. He also alleged a violation of the open meeting law, ARIZ. REV. STAT. section 33-1248, claiming the Board made its decision before the public meeting.

3. On June 10, 2020, the Association’s Board adopted a new rule regarding the monument sign, a common element. This rule limited the use of the sign, which had space for only five businesses, to the owners of units located in Building B.

4. The Association argued the rule was reasonable because Building A has street frontage where signs can be hung, providing visibility. In contrast, Building B lacks street frontage, making the monument sign a critical advertising tool for its occupants.

5. The ALJ rejected the argument because the text of CC&R section 6.26(a) explicitly states its applicability is limited to the restrictions “contained in this Article 6.” The disputed rule was created under the authority of Article 7, so the non-discrimination clause of Article 6 did not apply.

6. The “preponderance of the evidence” is the standard of proof requiring that the evidence be of greater weight and more convincing force, inclining a fair mind to one side of the issue. In this administrative hearing, the Petitioner, Keith D. Smith, bore the burden of proof to show the alleged violations occurred by this standard.

7. The allegation was dismissed due to a lack of substantial evidence. Mr. Smith acknowledged he had no emails to support his claim of prior communication, and the credible testimony of Stuart Rayburn and Harold Bordelon established that a lengthy discussion did occur at the meeting before the vote was taken.

8. Mr. Smith requested a rehearing on several grounds, including alleged irregularity in the proceedings, abuse of discretion by the ALJ, errors of law (such as in the admission or rejection of evidence), and that the decision was arbitrary, capricious, and not supported by the evidence.

9. The ALJ refused to consider the email because evidence must be presented during the original hearing. Since Mr. Smith did not offer the document at the October 26, 2020 hearing, it could not be introduced for the first time in a request for a rehearing.

10. In both the original hearing decision (November 16, 2020) and the rehearing decision (June 3, 2021), Keith D. Smith’s petition was dismissed. The ALJ consistently found that Mr. Smith had failed to meet his burden of proof for both the CC&R violation and the open meeting law violation.

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Essay Questions

Instructions: Formulate detailed responses to the following prompts, synthesizing evidence and arguments from both administrative decisions.

1. Analyze the legal reasoning employed by Administrative Law Judge Thomas Shedden to conclude that the monument sign rule was not an “unreasonable” discrimination among owners under CC&R section 7.1(c).

2. Trace the evolution of Keith D. Smith’s open meeting law allegation from his initial petition through his request for rehearing. Discuss the specific evidence presented (or lack thereof) and explain why the ALJ found his claims unconvincing at every stage.

3. Explain the concept of procedural limitations in administrative hearings, using Mr. Smith’s case as an example. Focus on why the ALJ could only consider two issues, why new evidence was rejected on rehearing, and why other “perceived deficiencies” were not addressed.

4. Discuss the significance of the “common elements” in this dispute. How did Mr. Smith’s claim of an “undivided interest” in the monument sign contrast with the Association’s right to regulate its use, and how was this conflict ultimately resolved by the ALJ?

5. Evaluate the arguments presented regarding CC&R section 6.26(a). Explain Mr. Smith’s interpretation of the clause and the ALJ’s contrary interpretation based on the explicit text of the document.

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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, the ALJ was Thomas Shedden.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. Sections 33-1248 (open meeting law) and 33-1217 (partition of common elements) were cited.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the burden of proof was on the Petitioner, Keith D. Smith.

CC&Rs (Covenants, Conditions & Restrictions)

The governing legal documents that set up the guidelines for a planned community or condominium. The key sections in this case were 6.10, 6.24, 6.26(a), and 7.1(c).

Common Elements

Parts of a condominium property that are owned in common by all unit owners and managed by the association. The monument sign was acknowledged by the Association as a common element.

Monument Sign

A freestanding sign at the property entrance that was the central subject of the dispute. It had space for only five businesses to advertise.

Office of Administrative Hearings (OAH)

The state agency where the hearings for this case were conducted.

Open Meeting Law

A state statute (ARIZ. REV. STAT. section 33-1248) requiring that meetings of governing bodies, like an HOA board, be conducted in public with proper notice and opportunity for member input.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, Keith D. Smith.

Preponderance of the Evidence

The standard of proof in this case, defined as evidence that has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Rehearing

A second hearing of a case to reconsider the initial decision, typically granted on specific grounds such as procedural error or a decision contrary to evidence. Mr. Smith’s request for rehearing was granted but the original decision was upheld.

Respondent

The party against whom a petition is filed. In this case, the Sierra Foothills Condominium Association.

Substantial Evidence

Evidence that a reasonable mind would use to reach a conclusion. The ALJ found that Mr. Smith offered no substantial evidence for his open meeting law claim.

Waived

The voluntary relinquishment of a known right or argument. The Association waived its argument that the monument sign was not a common element by acknowledging that it was in its official Answer.

Blog Post – 21F-H2120003-REL

I Read a 17-Page HOA Lawsuit Over a Sign. Here Are 5 Surprising Lessons for Every Homeowner.

Introduction: The Signpost to a Bigger Story

For anyone living in a community with a Homeowner or Condominium Association, the rulebook can feel like a source of endless frustration. The rules often seem complex, arbitrary, and difficult to challenge. But what really happens when an owner decides to fight back?

I recently analyzed the initial ruling and final rehearing decision—17 pages in all—from just such a fight: a formal petition filed by Keith D. Smith against the Sierra Foothills Condominium Association. This wasn’t a residential dispute over lawn ornaments or paint colors; it was a commercial conflict over who was allowed to use a single monument sign. But within this seemingly small micro-drama are universal lessons that are shockingly relevant to any owner navigating a dispute with their association.

Here are five surprising lessons from Mr. Smith’s legal battle that every owner should understand.

1. Read the Fine Print. No,ReallyRead It.

Mr. Smith’s primary argument was one of unfair discrimination. He owned a unit in Building A and was prohibited from using the monument sign, a common element, while owners in Building B were allowed to use it. He pointed to a specific rule in the governing documents, CC&R section 6.26(a), which stated that use restrictions must be applicable to all owners. This seemed like a clear-cut case of the board violating its own rules.

He lost. The reason was a tiny but critical detail in the fine print. The judge found that the non-discrimination clause Mr. Smith cited explicitly stated it only applied to rules “contained in this Article 6.” The board’s authority to create the sign rule came from a different section entirely, “Article 7,” specifically section 7.1(c), which did not contain the same mandate for equal application.

The judge’s finding on the rehearing was conclusive:

“Section 6.26(a) provides that the use restrictions ‘contained in this Article 6’ are applicable to all owners. Consequently, section 6.26(a) cannot be read to require that rules promulgated under section 7.1(c) must apply to all owners.”

The specific structure and wording of your governing documents are paramount. An assumption about a rule’s general intent is not enough. A single phrase—like “in this Article 6″—can make or break an entire legal argument.

2. What Feels Unfair Isn’t Always Legally “Unreasonable”

From Mr. Smith’s perspective, the situation was fundamentally unfair. As a property owner, he had an undivided interest in all common elements, including the monument sign. To be completely excluded from using it felt like a violation of his ownership rights.

However, the Association and the judge saw it differently. The rule was deemed legally “reasonable” for two logical and practical reasons:

1. The sign had a very limited number of spaces—only five businesses could be advertised.

2. Building A, where Mr. Smith’s unit was located, had valuable street frontage where businesses could place their own signs. Building B, in contrast, had no street frontage, making the monument sign the primary and essential tool for visibility for those businesses.

This is where the fine print from the first lesson comes roaring back. The judge noted that the board’s authority under section 7.1(c) “on its face allows discrimination among owners” as long as it wasn’t unreasonable. The specific language of the documents gave the board the explicit power to treat owners differently, provided there was a rational basis—which, in this case, there was. In association disputes, the legal standard is often “reasonableness,” which is evaluated based on context and logic, not just an individual’s feeling of fairness.

3. Suspecting a “Secret Meeting” Isn’t Enough to Prove It

Mr. Smith also alleged that the board violated the open meeting law. He claimed that when the sign issue came up at the board meeting, the president immediately called for a vote without any discussion. This led him to believe the decision had already been made in secret via email.

In his petition, he stated his certainty in plain terms:

“Obviously, the board members communicated with each other via email and reached their decision without ever hearing my argument.”

This claim failed completely. At the hearing, Mr. Smith acknowledged that he had no emails or other documents to support his allegation. Furthermore, the Association’s president and another member presented “credible testimony” that, contrary to Mr. Smith’s recollection, a “protracted” discussion lasting about an hour and a half had, in fact, taken place before the vote was called.

An accusation, no matter how “obvious” it seems to you, is not evidence. To successfully challenge an association’s procedure, you must provide proof. Suspicion and personal interpretation of events are not enough to win a legal claim.

4. Your First Shot Is Often Your Only Shot

After the judge dismissed his initial petition, Mr. Smith filed for a rehearing. In this new request, he tried to introduce new arguments and evidence to bolster his case. Specifically, he raised:

• A brand-new claim that the sign rule violated a state statute (ARIZ. REV. STAT. section 33-1217) concerning the partitioning of common elements.

• A reference to an email he now claimed to possess that would support his open meeting law violation argument.

The judge flatly rejected these new points. The reason was purely procedural: the rules of the legal process require all claims and evidence to be presented in the initial petition and at the original hearing. You cannot hold arguments in reserve to see how the first ruling goes.

The judge’s decision was unequivocal:

“Consequently, evidence that Mr. Smith did not present at the original hearing cannot be considered in this rehearing.”

The legal process is not flexible. You must build your entire case and present all your evidence from the very beginning. Your first shot is often your only shot.

5. The Burden of Proof Is on the Accuser

This may be the most crucial lesson of all. In a dispute like this, the legal responsibility, or “burden of proof,” was on Mr. Smith to prove that the Association had acted improperly. It was not the Association’s job to prove its innocence.

The standard he had to meet was “a preponderance of the evidence.” The judge’s decision included a formal definition of this standard, which clearly explains the high bar an accuser must clear:

“The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ultimately, the judge concluded that Mr. Smith “did not prove” that either of his claims met this standard. His feelings of unfairness and his suspicions of improper procedure were not supported by superior evidentiary weight, and his petition was dismissed. If you decide to formally challenge your association, you are the accuser, and you carry the burden of proof.

Conclusion: Know the Rules of the Game

A seemingly minor dispute over a commercial sign reveals fundamental truths about navigating any rule-based organization, especially an HOA or Condo Association. The outcome hinged on the precise language of the documents, the legal definition of “reasonable,” the high bar for proving misconduct, and the rigid procedures of the hearing process. Mr. Smith’s case serves as a powerful reminder that to successfully challenge the rules, you must first master the rules of the game.

This entire conflict hinged on the specific wording of a few sentences in a thick rulebook. When was the last time you truly read the documents that govern your own community, and what crucial details might be hiding in plain sight?

Case Participants

Petitioner Side

Keith D Smith (petitioner)
Appeared on his own behalf; Unit Owner

Respondent Side

Stuart Rayburn (association president)
Sierra Foothills Condominium Association
Representative for Respondent
Harold Bordelon (witness)
Sierra Foothills Condominium Association
Testified for the Association

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Judy Lowe (commissioner)
Arizona Department of Real Estate
Recipient of transmission
LDettorre (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)
AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)
djones (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)
DGardner (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)
ncano (ADRE staff)
Arizona Department of Real Estate
Recipient of transmission (email handle)

Douglas E Kupel v. Hidden Valley Association

Posted on October 30, 2020 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	21F-H2120006-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2020-10-30
Administrative Law Judge	Adam D. Stone
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Douglas E. Kupel	Counsel	—
Respondent	Hidden Valley Association	Counsel	Timothy Butterfield, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the Association's conduct did not violate ARIZ. REV. STAT. § 33-1805 because the Petitioner did not prove by a preponderance of the evidence that the requested records were in existence and subject to disclosure.

Why this result: Petitioner failed to establish that the requested records (communications) were in existence and subject to disclosure.

Key Issues & Findings

Failing to fulfill Petitioner’s records request

Petitioner claimed the HOA failed to provide copies of all communications (written/electronic) related to information requests, open meeting law compliance, and changes to bylaws, arguing they were not exempt from disclosure under ARIZ. REV. STAT. § 33-1805(B). The HOA asserted no disclosable records existed.

Orders: Petitioner's petition and request for civil penalty are denied. Respondent shall not reimburse Petitioner's filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: HOA Records Request, Records Disclosure, ARIZ. REV. STAT. 33-1805, Burden of Proof, Preponderance of Evidence

Additional Citations:

ARIZ. REV. STAT. § 33-1805
ARIZ. REV. STAT. § 32-2199 et al.
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 41-1092

Audio Overview

Decision Documents

21F-H2120006-REL Decision – 834142.pdf

Uploaded 2026-01-23T17:34:55 (147.6 KB)

Briefing Doc – 21F-H2120006-REL

Administrative Law Judge Decision: Kupel vs. Hidden Valley Association

Executive Summary

The Administrative Law Judge (ALJ) for the Arizona Office of Administrative Hearings denied a petition filed by homeowner Douglas E. Kupel against the Hidden Valley Association (HVA). The core of the dispute was Kupel’s allegation that HVA violated Arizona statute ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill a comprehensive records request. While HVA provided its records retention policy and legal invoices, it withheld two categories of electronic and hard copy communications, claiming no such disclosable records existed.

Kupel argued that statements made in emails by HVA Board President Gary Freed—specifically that certain communications would be “filed as an HVA business record”—proved the existence of the requested records. HVA countered that this statement was a mistake on Freed’s part, resulting from an initial misunderstanding of retention requirements, and that no records subject to disclosure actually existed.

The ALJ ultimately concluded that Kupel failed to meet the “preponderance of the evidence” standard required to prove his claim. The judge found that the evidence presented was not sufficient to prove that the requested records existed and were being improperly withheld. Consequently, the petition was denied, and Kupel’s requests for reimbursement of his filing fee and the imposition of a civil penalty against HVA were also denied.

Case Overview

Case Name

Douglas E Kupel, Petitioner, vs. Hidden Valley Association, Respondent

Case Number

21F-H2120006-REL

Jurisdiction

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Adam D. Stone

Hearing Date

October 22, 2020

Decision Date

October 30, 2020

Key Parties

Douglas E. Kupel (Petitioner), Hidden Valley Association (Respondent), Gary Freed (HVA Board President)

Core Dispute: The Records Request

The central issue of the hearing was whether the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to fully comply with a records request submitted by Kupel on June 22, 2020. HVA, through its community manager HOAMCO, provided a partial response on July 1, 2020.

Breakdown of the Records Request:

• Request 1 (Fulfilled): A copy of the HVA records retention policy adopted on January 15, 2020.

• Request 2 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding “information requests or open meeting law compliance” from July 2019 to the present.

• Request 3 (Denied): Copies of all communications (email and hard copy) to or from current and former HVA Board and committee members regarding any proposed, discussed, or adopted changes to the Association bylaws from January 2019 to the present.

• Request 4 (Fulfilled): Copies of invoices, billing statements, and payment records for legal services associated with revisions to the Association bylaws from January 2019 to the present.

HVA and its President, Gary Freed, asserted that the denied communications were not subject to disclosure under the exceptions outlined in ARIZ. REV. STAT. § 33-1805(B).

Petitioner’s Position and Evidence (Douglas E. Kupel)

• Allegation: Kupel accused HVA of willfully failing to fulfill his request, alleging that non-exempt records did exist and should have been disclosed.

• Primary Evidence: Kupel submitted several email messages from HVA President Gary Freed which contained the statement: “This communication has been received, and will be filed as an HVA business record in the files maintained by HOAMCO for the benefit of HVA” or substantially similar language.

• Argument: Kupel testified that these emails proved the existence of communications that did not meet the statutory exclusions and, therefore, HVA had failed to fully respond to his request.

• Requested Relief:

1. An order compelling HVA to abide by ARIZ. REV. STAT. § 33-1805.

2. Reimbursement of the $500 filing fee.

3. The levying of a civil penalty against HVA.

Respondent’s Position and Evidence (Hidden Valley Association)

• Witness Testimony: HVA Board President Gary Freed testified on behalf of the association.

• Core Defense: Freed testified that based on HVA’s records retention policy and his understanding of open meeting laws, “no records existed which were subject to disclosure.”

• Explanation of Contested Emails: Freed explained that his prior email statements about filing all communications were a mistake. He testified that he initially believed all communications needed to be retained but later learned this was incorrect.

• Search Process: Freed admitted that neither he nor other board members conducted a one-by-one search of every single email. However, he testified that he “may have scanned his personal e-mail” and did not dismiss the petitioner’s request “out-of-hand.”

• Association Practices: Freed asserted that HVA business was conducted via open meetings, with the exception of a single emergency situation, implying that no discoverable email correspondence regarding official business would exist.

Administrative Law Judge’s Analysis and Conclusion

The ALJ’s decision rested on the legal standard of “preponderance of the evidence,” defined as proof convincing the trier of fact that a contention is more probably true than not. The petitioner, Kupel, bore the burden of meeting this standard.

• Evaluation of Evidence: The judge found Kupel’s primary argument unpersuasive. The decision states, “Essentially, Petitioner is claiming that there must be other records in existence because of the language that Mr. Freed used… This is not persuasive as there was no evidence presented by Petitioner to prove that the records were in existence.”

• Credibility of Testimony: The judge gave weight to Freed’s testimony that he had been mistaken about record-keeping protocols. The decision also noted that HVA’s official records retention policy, adopted six months prior to the request, specifically outlined which communications were to be kept.

• Lack of Proof: The judge concluded that Freed believed any documents that might have existed were subject to statutory exemptions and that all relevant business was conducted in open meetings. Ultimately, Kupel failed to provide sufficient proof that discoverable records actually existed.

• Final Ruling: The ALJ concluded that “the Association’s conduct, as outlined above, did not violate the charged provisions of ARIZ. REV. STAT. § 33-1805.”

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders:

Outcome

Petitioner’s Petition

Denied

Request for Civil Penalty

Denied

Reimbursement of Filing Fee

Denied (Respondent shall not reimburse Petitioner’s fee)

The decision is binding on the parties unless a request for rehearing is filed with the Commissioner of the Arizona Department of Real Estate within thirty days of the order’s service.

Study Guide – 21F-H2120006-REL

Study Guide: Kupel v. Hidden Valley Association, No. 21F-H2120006-REL

This study guide provides a review of the administrative hearing decision in the matter of Douglas E. Kupel versus the Hidden Valley Association. It includes a quiz with an answer key to test comprehension of the facts, a set of essay questions for deeper analysis, and a glossary of key terms.

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Quiz: Short-Answer Questions

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

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

2. What was the specific violation alleged by the Petitioner in his petition to the Department of Real Estate?

3. What four categories of records did the Petitioner request from the Hidden Valley Association (HVA) on June 22, 2020?

4. Which parts of the Petitioner’s records request did the HVA fulfill, and which parts did it deny?

5. What was the Petitioner’s central piece of evidence to argue that the HVA was improperly withholding existing communications?

6. How did HVA Board President Gary Freed explain the discrepancy between his email statements and the association’s refusal to provide the requested communications?

7. What is the “preponderance of the evidence” standard, and which party was required to meet this standard?

8. According to Mr. Freed’s testimony, where was all official HVA business conducted?

9. What was the Administrative Law Judge’s final conclusion regarding the HVA’s conduct in this matter?

10. What three specific outcomes were mandated by the final ORDER issued on October 30, 2020?

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Answer Key

1. The primary parties were the Petitioner, Douglas E. Kupel, a property owner and member of the Hidden Valley Association, and the Respondent, the Hidden Valley Association (HVA). The Petitioner brought the complaint against the Respondent, alleging a violation of state law.

2. The Petitioner alleged that the Hidden Valley Association violated ARIZ. REV. STAT. § 33-1805 by failing to completely fulfill his records request. Specifically, he claimed the association improperly withheld communications records.

3. The Petitioner requested: (1) the records retention policy; (2) communications regarding information requests or open meeting law compliance; (3) communications regarding proposed changes to the association bylaws; and (4) legal invoices and payment records related to bylaw revisions.

4. The HVA fulfilled the request for the records retention policy and the legal invoices. It denied the two requests for communications between board and committee members, claiming the requested records were not subject to disclosure.

5. The Petitioner’s central evidence consisted of several emails from HVA Board President Gary Freed in which Mr. Freed stated, “[t]his communication has been received, and will be filed as an HVA business record.” The Petitioner argued this proved that such communications existed and were official records.

6. Mr. Freed testified that he was initially mistaken in his belief that all communications needed to be retained and that this was why he included that language in his emails. He clarified that based on the HVA’s records retention policy and open meeting laws, no disclosable records of the type requested existed.

7. “Preponderance of the evidence” is the standard of proof requiring the evidence to convince the trier of fact that a contention is more probably true than not. The Petitioner, Douglas E. Kupel, bore the burden of proving his case by this standard.

8. Mr. Freed testified that all HVA business was conducted via open meetings. He stated that there were no meetings conducted solely by email, with the exception of a single emergency situation.

9. The Administrative Law Judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the HVA was in violation of ARIZ. REV. STAT. § 33-1805. The judge found the HVA’s conduct did not violate the charged statute.

10. The final ORDER (1) denied the Petitioner’s petition, (2) denied the Petitioner’s request for a civil penalty against the Respondent, and (3) ordered that the Respondent shall not be required to reimburse the Petitioner’s $500.00 filing fee.

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Essay Questions

The following questions are designed for in-depth analysis and discussion. Answers are not provided.

1. Analyze the legal arguments presented by both the Petitioner, Douglas E. Kupel, and the Respondent, Hidden Valley Association. How did each party use the evidence and ARIZ. REV. STAT. § 33-1805 to support their position?

2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain how the Administrative Law Judge determined that the Petitioner failed to meet this burden of proof.

3. Evaluate the testimony of HVA Board President Gary Freed. How did his explanations regarding his email statements and the association’s record-keeping practices influence the judge’s final decision?

4. Examine ARIZ. REV. STAT. § 33-1805(B), which outlines the exceptions for withholding records. Based on the case details, explain why the communications requested by the Petitioner were ultimately deemed non-disclosable or non-existent under this statute.

5. Describe the complete procedural history of the case, from the initial filing of the petition to the final order. Include key dates, entities involved (such as the Department of Real Estate and the Office of Administrative Hearings), and the final remedies sought by the Petitioner versus the actual outcome.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings and makes decisions on behalf of a government agency. In this case, the ALJ was Adam D. Stone.

ARIZ. REV. STAT. § 33-1805

The Arizona Revised Statute that governs the examination and disclosure of a homeowners’ association’s financial and other records by its members. It outlines the process for requests, a ten-business-day fulfillment window, and specific exemptions allowing an association to withhold certain records.

ARIZ. REV. STAT. § 32-2199.01(A)

The Arizona Revised Statute cited by the Petitioner that allows an administrative law judge to levy a civil penalty against a party found to be in violation of the law.

Burden of Proof

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

Covenants, Conditions, and Restrictions (CC&Rs)

The official governing documents that establish the rules and obligations for a homeowners’ association and its members.

Department of Real Estate (“Department”)

The Arizona state agency authorized to receive and decide petitions for hearings involving disputes between homeowners and their associations.

Hidden Valley Association (HVA)

The Respondent in the case; a homeowners’ association for the Hidden Valley Ranch subdivision in Prescott, Arizona, governed by CC&Rs and a Board of Directors.

HOAMCO

The company that served as the Community Manager for the Hidden Valley Association and initially responded to the Petitioner’s records request.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona to which the Department of Real Estate referred this matter for an evidentiary hearing.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, the Petitioner was Douglas E. Kupel, a homeowner and member of the HVA.

Preponderance of the Evidence

The standard of proof required in this hearing. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, making the contention 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 Respondent was the Hidden Valley Association.

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