The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.
Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.
Key Issues & Findings
Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)
Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
Topics: HOA records request, A.R.S. 33-1258, Rehearing, Civil Penalty, Possession of Records
Additional Citations:
A.R.S. § 33-1258
A.R.S. § 32-2199.02
A.A.C. R2-19-119
Video Overview
Audio Overview
Decision Documents
20F-H2020064-REL Decision – 823263.pdf
Uploaded 2025-10-09T03:35:33 (108.6 KB)
Briefing Doc – 20F-H2020064-REL
Briefing Document: Babington v. Park Scottsdale II Townhouse Corporation
Executive Summary
This document synthesizes the findings from two administrative hearings concerning a records request dispute between homeowner Nancy L. Babington (Petitioner) and the Park Scottsdale II Townhouse Corporation (Respondent). The case, No. 20F-H2020064-REL, culminated in a reversal of an initial ruling, finding the Respondent in violation of Arizona law A.R.S. § 33-1258 for failing to provide association records within the statutory timeframe.
The initial hearing on August 28, 2020, resulted in a denial of the petition. The Respondent successfully argued that it could not produce the requested documents because they were not in its possession, largely due to a dispute with a former management company. However, a rehearing was granted after the Petitioner discovered new evidence.
The rehearing on March 4, 2021, established that the Respondent, through its management company Associa Arizona, was in possession of key requested documents—specifically bank statements and signed contracts—at the time of the initial request. Evidence revealed the bank statements were held at a central corporate office in Texas and were not retrieved, while signed contracts had not been forwarded to the management company by board members. The Administrative Law Judge found this directly contradicted the Respondent’s initial defense.
As a result, the Administrative Law Judge reversed the earlier decision, ordering the Respondent to reimburse the Petitioner’s $500 filing fee and imposing a $2,500 civil penalty payable to the Arizona Department of Real Estate. The case underscores an association’s responsibility to produce all records in its possession, regardless of physical location within the corporate structure, and affirms the court’s authority to levy penalties for violations.
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1. Case Overview
• Case Number: 20F-H2020064-REL
• Petitioner: Nancy L. Babington
• Respondent: Park Scottsdale II Townhouse Corporation
• Core Allegation: Violation of A.R.S. § 33-1258, which mandates that a condominium owners’ association must make its financial and other records reasonably available for examination by a member within ten business days of a request.
• Hearings Conducted:
◦ Initial Hearing: August 28, 2020
◦ Rehearing: March 4, 2021
• Presiding Administrative Law Judge: Tammy L. Eigenheer
2. Chronology of the Dispute
The dispute originated from difficulties following a change in the Respondent’s management company and subsequent records requests by the Petitioner.
• June-July 2019: The previous management company, Community Management & Consulting, LLC (CMC), terminated its agreement with the Respondent. A “financial disagreement” led to CMC withholding records, complicating the transition.
• Post-July 2019: Respondent hired Associa Arizona as its new management company. Associa and the Respondent’s counsel attempted to obtain the withheld records from CMC.
• April 29, 2020: After previous attempts to get information, Petitioner Nancy L. Babington sent a formal email to Associa and the Respondent’s Board of Directors. In the email, she stated:
• May 1, 2020: Linda Parker, Director of Client Services with Associa, replied, stating the request was not specific and asked the Petitioner to identify the exact records needed.
• May 1, 2020: The Petitioner responded with a detailed list of nine specific items:
1. All bank statements with copies of cancelled checks since Sept 1, 2019.
2. Any and all financial statements since Sept 1, 2019.
3. Any and all 1099s issued for 2019.
4. Any and all Executive Session meeting minutes conducted in 2020 (excluding statutory exemptions).
5. Any and all contracts signed in 2020.
6. Any and all outstanding invoices with a due date over 45 days.
7. Any documentation regarding the legality of the $204.75 maintenance fee.
8. Any proof of Stephen Silberschlag’s liability insurance.
9. Any landscaping plans.
• May 4, 2020: Ms. Parker from Associa responded that the company could only provide records within its possession.
• May 15, 2020: Following another email from the Petitioner, Ms. Parker stated that Associa had scheduled a meeting with the board on May 20 to discuss the request further.
• May 28, 2020: Having not received any of the requested documents, the Petitioner filed a petition with the Arizona Department of Real Estate.
3. The Initial Hearing and Decision (August – September 2020)
The first hearing focused on whether the Respondent had violated the statute by failing to produce the documents.
• The Respondent argued that it was unable to provide documents that were not in its possession.
• Joseph Silberschlag, Secretary of the Board of Directors, testified that issues with the former management company (CMC) meant neither the Respondent nor Associa had possession of many necessary documents.
• Specifically, he stated that without previous financial documents and starting balances from CMC, the association was unable to create current financial statements.
• The Respondent maintained it was under no statutory obligation to create documents to fulfill the Petitioner’s request.
• The Administrative Law Judge (ALJ) concluded that the Petitioner “failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 33-1258(A).”
• The finding was based on the Respondent’s argument that it did not possess the requested documents at the time of the request.
• On September 17, 2020, the ALJ issued a decision denying the Petitioner’s petition.
4. The Rehearing and Reversal (March 2021)
Following the initial decision, the case was reopened based on new evidence presented by the Petitioner.
• After the September 2020 decision, the Respondent provided some of the requested documents to the Petitioner.
• Upon reviewing these documents, the Petitioner realized that the Respondent had, in fact, been in possession of several key records prior to her May 1, 2020 request.
• She filed a Rehearing Request with the Department of Real Estate, citing “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” The request was granted.
The rehearing revealed crucial details about the location and accessibility of the requested records.
Record Type
Petitioner’s Evidence
Respondent’s Testimony/Explanation
Bank Statements
The documents received post-hearing showed that bank statements had been sent to Associa starting in August 2019.
Evelyn Shanley, Community Director for Associa, testified that statements for all HOAs were sent to a central office in Richardson, Texas. She admitted she did not contact the Texas office to obtain the statements for the Petitioner’s request. Counsel for the Respondent conceded the statements in Texas were in the possession of Associa.
Contracts
Petitioner presented two contracts signed by Board members on March 27 and March 31, 2020, prior to her request.
Ms. Shanley admitted the two signed contracts existed but stated that the Board of Directors members had not provided them to Associa.
1099 Forms
Petitioner noted a document indicating four vendors were eligible for 1099s.
Ms. Shanley denied that any 1099s had been issued.
• The documents were not in the “immediate possession” of the local Associa office.
• The matter was now moot because the Petitioner had received all requested documents.
• A civil penalty was inappropriate because the Petitioner did not specifically request one on her initial petition form.
• The evidence presented at the rehearing was “directly contradictory” to the representations made by the Respondent at the initial hearing.
• The Petitioner successfully established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1258(A) by failing to provide documents (bank statements and contracts) that were in its possession.
• The ALJ rejected the Respondent’s argument against a civil penalty, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a penalty for established violations, and “nothing in the statute limits the available remedies to those specifically requested by a petitioner.”
5. Final Order and Penalties
The Administrative Law Judge Decision issued on March 24, 2021, reversed the initial finding and imposed penalties on the Respondent.
IT IS ORDERED that:
1. Respondent must pay the Petitioner her filing fee of $500.00 within 30 days.
2. Respondent must pay to the Department of Real Estate a civil penalty in the amount of $2,500.00 within 30 days.
Study Guide – 20F-H2020064-REL
Study Guide: Babington v. Park Scottsdale II Townhouse Corporation
This study guide provides a review of the administrative case involving Petitioner Nancy L. Babington and Respondent Park Scottsdale II Townhouse Corporation. It includes a short-answer quiz to test factual recall, a separate answer key, a set of essay questions for deeper analysis, and a glossary of key terms and entities involved in the proceedings.
Short-Answer Quiz
Answer each question in 2-3 sentences based on the information provided in the case documents.
1. Who were the primary parties in this case, and what was the Petitioner’s central allegation?
2. What specific Arizona statute was the Respondent accused of violating, and what does this law generally require?
3. What was the Respondent’s main defense during the initial hearing on August 28, 2020, for not providing the requested records?
4. What was the conclusion of the Administrative Law Judge in the first decision, issued on September 17, 2020?
5. On what legal grounds did the Petitioner successfully file for a rehearing of her case?
6. What new evidence regarding bank statements was presented by the Petitioner at the March 4, 2021, rehearing?
7. How did the Respondent’s management company, Associa Arizona, explain its failure to produce the bank statements and signed contracts in response to the initial request?
8. What was the final outcome of the rehearing, and how did it contradict the initial decision?
9. What two financial penalties were imposed upon the Respondent in the final order of March 24, 2021?
10. What was the Respondent’s argument against the imposition of a civil penalty, and why did the Administrative Law Judge reject it?
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Answer Key
1. The primary parties were Petitioner Nancy L. Babington, a property owner, and Respondent Park Scottsdale II Townhouse Corporation, a condominium owners association. The Petitioner alleged that the Respondent failed to provide association records she formally requested, in violation of Arizona law.
2. The Respondent was accused of violating A.R.S. § 33-1258. This statute requires a condominium owners association to make its financial and other records reasonably available for examination by a member and to provide copies of requested records within ten business days.
3. During the initial hearing, the Respondent’s main defense was that it was unable to provide the documents because they were not in its possession. The Respondent claimed its former management company, CMC, was withholding records and that without starting balances, it could not create new financial documents.
4. The Administrative Law Judge denied the Petitioner’s petition in the first decision. The judge concluded that the Petitioner failed to establish by a preponderance of the evidence that the Respondent violated the statute because the Respondent did not possess the documents and was not required to create them.
5. The Petitioner was granted a rehearing based on the discovery of “newly discovered material evidence that could not with reasonable diligence have been discovered and produced at the original hearing.” After the first decision, the Respondent provided documents that proved it had, in fact, been in possession of some of the requested records prior to her request.
6. At the rehearing, the Petitioner testified that after receiving the documents, she realized bank statements had been sent to Associa’s central office in Richardson, Texas, starting in August 2019. This demonstrated that the records were in the management company’s possession when she made her request.
7. Associa’s representative testified that bank statements went to a central office in Texas and were not forwarded to the local office because financial packets could not be prepared without starting balances from the previous management company. Regarding the contracts, Associa claimed that the Board of Directors members who signed them had not provided the contracts to Associa.
8. The final outcome of the rehearing was a ruling in favor of the Petitioner. The judge found that evidence presented at the rehearing directly contradicted the Respondent’s earlier claims, establishing that the Respondent did possess bank statements and contracts and had violated A.R.S. § 33-1258(A).
9. In the final order, the Respondent was ordered to pay the Petitioner’s filing fee of $500.00. Additionally, the Respondent was ordered to pay a civil penalty of $2,500.00 to the Arizona Department of Real Estate.
10. The Respondent argued that a civil penalty was not appropriate because the Petitioner did not specifically request one by checking the box on the petition form. The judge rejected this, stating that the plain language of A.R.S. § 32-2199.02 allows the judge to levy a civil penalty for established violations, and this authority is not limited by the remedies requested by a petitioner.
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Essay Questions
The following questions are designed for analytical and in-depth responses. Answers are not provided.
1. Analyze the concept of “possession” of records as it evolved from the first hearing to the second. How did the Respondent’s initial interpretation of “immediate possession” differ from the Administrative Law Judge’s final conclusion regarding the records held by Associa’s Texas office?
2. Discuss the significance of the “preponderance of the evidence” standard in this case. Explain specifically how the Petitioner failed to meet this standard in the first hearing but succeeded in the second, citing the key pieces of evidence that shifted the outcome.
3. Evaluate the role and responsibilities of the management company, Associa Arizona, in this dispute. To what extent were its internal procedures and actions (or inactions) the primary cause of the Respondent’s violation of A.R.S. § 33-1258?
4. Trace the timeline of communication between Nancy Babington and Associa Arizona from April 29, 2020, to May 15, 2020. Analyze how the responses from Associa may have contributed to the perception that the Respondent was refusing to provide information, ultimately leading to the petition being filed.
5. The Administrative Law Judge has the statutory authority to levy a civil penalty for each violation found. Based on the facts of this case, including the Respondent’s representations at the first hearing and the contradictory evidence presented at the second, construct an argument justifying the imposition of the $2,500 civil penalty.
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Glossary of Key Terms
Term / Entity
Definition
A.R.S. § 32-2199 et seq.
The Arizona Revised Statute cited as giving the Arizona Department of Real Estate jurisdiction to hear disputes between a property owner and a condominium owners association.
A.R.S. § 33-1258
The Arizona Revised Statute at the core of the dispute. It requires that an association’s financial and other records be made “reasonably available” for examination and that the association has ten business days to fulfill a request for examination or to provide copies.
Administrative Law Judge (ALJ)
The official from the Office of Administrative Hearings (Tammy L. Eigenheer in this case) responsible for conducting the hearings, weighing evidence, and issuing a legally binding decision and order.
Associa Arizona
The management company hired by the Respondent to handle its operations after the termination of the previous management agreement. It was the primary point of contact for the Petitioner’s records request.
Civil Penalty
A monetary fine levied by the Administrative Law Judge for a violation of the law. In this case, a $2,500 penalty was ordered to be paid to the Department of Real Estate.
Community Management & Consulting, LLC (CMC)
The Respondent’s former management company. CMC terminated its agreement with the Respondent and was withholding association records due to a financial disagreement, which was a key part of the Respondent’s defense in the initial hearing.
Department of Real Estate (Department)
The Arizona state agency with which the Petitioner filed her petition and which has jurisdiction over such disputes.
A legal argument made by the Respondent’s counsel during the rehearing. Counsel asserted that the matter was moot (no longer relevant or in dispute) because, by the time of the rehearing, the Petitioner had received all the documents she requested.
Newly Discovered Material Evidence
The legal basis upon which the Petitioner was granted a rehearing. It refers to significant evidence that was not available at the time of the original hearing despite reasonable diligence.
Petitioner
The party who initiates a legal action or petition. In this case, Nancy L. Babington, a condominium owner.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win her case. It is defined as evidence that is more convincing and shows that the fact sought to be proved is “more probable than not.”
Rehearing
A second hearing granted by the Commissioner of the Department of Real Estate to re-examine a case, which was held on March 4, 2021, after the Petitioner presented newly discovered evidence.
Respondent
The party against whom a petition is filed. In this case, Park Scottsdale II Townhouse Corporation, the condominium owners association.
Blog Post – 20F-H2020064-REL
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20F-H2020064-REL-RHG
2 sources
These two sources are Administrative Law Judge Decisions concerning a dispute between Nancy L. Babington, a homeowner, and the Park Scottsdale II Townhouse Corporation, her condominium owners association, regarding the provision of association records under Arizona statute A.R.S. § 33-1258. The first document details the initial hearing, held in August 2020, where the judge ruled in favor of the association, concluding that the association was not in violation because it lacked possession of the requested documents due to issues with its former management company. The second document outlines the rehearing, granted due to newly discovered evidence suggesting the association or its new management company, Associa Arizona, actually possessed some records, such as bank statements and contracts, despite earlier claims. Based on the rehearing’s findings, the judge determined the association violated the statute by not providing the records within the ten-day requirement and ordered the association to reimburse the petitioner’s filing fee and pay a civil penalty.
How did newly discovered evidence lead to reversal of the initial legal decision?
What were the specific consequences for the respondent following the administrative rehearing?
How did the interpretation of statutory record possession requirements change between hearings?
Based on 2 sources
Case Participants
Petitioner Side
Nancy L. Babington(petitioner)
Respondent Side
Lydia A. Peirce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at initial hearing
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Scott B. Carpenter(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent at rehearing
Debbie Schumacher(board member) Park Scottsdale II Townhouse Corporation
Marty Shuford(board member) Park Scottsdale II Townhouse Corporation
Joseph Silberschlag(board member) Park Scottsdale II Townhouse Corporation Secretary; testified
Angelina Rajenovich(board member) Park Scottsdale II Townhouse Corporation
Dermot Brown(board member) Park Scottsdale II Townhouse Corporation
Lori Nusbaum(board member) Park Scottsdale II Townhouse Corporation
Linda Parker(HOA staff) Associa Arizona Director of Client Services for property manager
Evelyn Shanley(HOA staff) Associa Arizona Community Director for property manager; testified at rehearing
Laura Smith(HOA staff) Associa Arizona
Neutral Parties
Tammy L. Eigenheer(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
LDettorre(ADRE staff) Arizona Department of Real Estate
AHansen(ADRE staff) Arizona Department of Real Estate
djones(ADRE staff) Arizona Department of Real Estate
DGardner(ADRE staff) Arizona Department of Real Estate
ncano(ADRE staff) Arizona Department of Real Estate
c. serrano(staff) Signed order transmission
Other Participants
Stephen Silberschlag(unknown) Subject of Petitioner's record request
Following a rehearing based on newly discovered evidence, the Administrative Law Judge found that Respondent violated A.R.S. § 33-1258(A) by failing to timely provide records it possessed. Respondent was ordered to reimburse the Petitioner $500.00 for the filing fee and pay a $2,500.00 civil penalty to the Department of Real Estate.
Key Issues & Findings
Failure to make association financial and other records reasonably available for examination/provide copies within ten business days.
Petitioner alleged Respondent violated A.R.S. § 33-1258 by failing to provide requested records (including bank statements and contracts) following a formal request on May 1, 2020. The Administrative Law Judge, in the rehearing, found that the evidence showed Respondent was in possession of bank statements and two signed contracts at the time of the request, contradicting prior testimony, thereby establishing a violation of the statute.
Orders: Respondent was ordered to pay Petitioner $500.00 for the filing fee reimbursement and pay a civil penalty of $2,500.00 to the Department of Real Estate, both payments due within 30 days.
The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.
Key Issues & Findings
Challenge to new HOA parking policy adoption
Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Briefing Document: Ganer v. Vincenz Homeowners Association (Case No. 20F-H2020060-REL)
Executive Summary
This document provides an analysis of the Administrative Law Judge Decision in the case of Laura B. Ganer vs. the Vincenz Homeowners Association (VHA), case number 20F-H2020060-REL. The central dispute concerned a new on-street parking policy adopted by the VHA Board in 2020. The petitioner, Ms. Ganer, alleged this policy violated multiple articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs).
The Administrative Law Judge, Velva Moses-Thompson, ultimately dismissed the petition. The court concluded that the VHA Board acted within the explicit authority granted to it by the community’s governing documents, specifically CC&R Article 10, § 10.11.1, which empowers the Board to designate parking areas. The judge found that the petitioner failed to meet the burden of proof—a “preponderance of the evidence”—to establish that the VHA had violated its CC&Rs. The decision affirmed the Board’s right to establish rules and regulations for parking as outlined in the CC&Rs without requiring a full membership vote for an amendment.
Background of the Dispute
The case originated from a single-issue petition filed by homeowner Laura B. Ganer with the Arizona Department of Real Estate on or about May 20, 2020. The petition alleged that the Vincenz Homeowners Association violated its governing documents by adopting a new parking policy.
• Parties:
◦ Petitioner: Laura B. Ganer, a property owner within the VHA.
◦ Respondent: Vincenz Homeowners Association (VHA).
• Catalyst: The VHA Board of Directors adopted a new on-street parking policy in 2020.
• Alleged Violations: The petition claimed the new policy violated VHA CC&R Article 10, Section 11; Article 7, Section 3; and Article 12, Section 2.
• Legal Forum: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing, which took place on August 27, 2020.
The Contested 2020 Parking Policy
The policy adopted by the VHA Board resolved to allow on-street parking for specific vehicles in designated areas, provided the parking complied with associated rules.
• Allowed Vehicles: Private passenger automobiles and pickup trucks that do not exceed one ton in capacity.
• Designated Parking Areas:
1. Immediately in front of a Lot, for vehicles associated with the owner, resident, or their guests, or with the lot owner’s consent.
2. Immediately in front of any Common Area park within the Association.
3. Along any public street within the Association that does not border a Lot (e.g., in front of a Common Area tract).
Core Legal Arguments and Cited CC&Rs
The dispute centered on whether the VHA Board had the authority to enact the new parking policy or if doing so violated the foundational CC&Rs.
Petitioner’s Position (Laura B. Ganer)
Ms. Ganer argued that the new policy fundamentally contradicted the intent and letter of the CC&Rs.
• Violation of Article 10: She asserted that the original intention of CC&R Article 10, Section 10.11.1 was to limit parking within the VHA.
• Violation of Article 7: She contended the policy violates Article 7, Section 3, because it is “unreasonable” by allowing parking “virtually everywhere” within the community.
• Implicit Amendment: The new policy was so expansive that it effectively constituted an amendment to the CC&Rs, which would require the procedure outlined in Article 12, Section 2 (a 67% member vote), not just a Board resolution.
Respondent’s Position (Vincenz HOA)
The VHA argued that its actions were a proper exercise of the authority explicitly granted to the Board in the CC&Rs.
• Authority from Article 10: VHA contended that CC&R Article 10, § 10.11.1 expressly allows the Board to create parking rules by permitting parking “within areas designated for such purpose by the Board.”
• Inapplicability of Article 7: The Association argued that Article 7, Section 3, which governs general “Association Rules,” did not apply because the parking policy was adopted under the specific authority of Article 10.
• No Amendment Required: VHA maintained that since Article 10 grants the Board the power to adopt parking rules and regulations, an amendment to the CC&Rs under Article 12, Section 2 was not necessary.
• Jurisdictional Argument: VHA also argued that the petition should be dismissed because Ms. Ganer failed to allege or provide facts that the VHA itself had improperly parked a vehicle in violation of the CC&Rs.
Relevant Articles from VHA CC&Rs
Article
Section
Provision Text
Article 10
§ 10.11.1
“Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”
Article 10
§ 10.11.2
Governs restrictions on other vehicles like RVs, boats, and commercial vehicles, but allows the Board to designate areas and rules for them.
Article 7
“By a majority vote of the Board, the Association may… adopt, amend and repeal the Association Rules. The Association Rules shall be reasonable… and shall not be inconsistent with this Declaration…”
Article 12
“Except as otherwise provided in this Declaration, this Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of: (a) Members holding not less than sixty-seven percent (67%) of all Class A votes…”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decision, issued on September 16, 2020, was based on a direct interpretation of the VHA’s governing documents and the evidence presented.
Legal Standard and Burden of Proof
• The petitioner, Ms. Ganer, bore the burden of proving her allegations by a “preponderance of the evidence,” defined as evidence that is more probably true than not.
• In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties, and they must be construed as a whole.
Conclusions of Law
1. Interpretation of Article 10: The judge found that CC&R Article 10, Section 10.11.1 unambiguously forbids parking except in specified locations, including “in an area that has… been designated for parking by the Board.”
2. Board Authority: The court concluded that the VHA’s adoption of the parking policy was a valid exercise of the authority explicitly granted to the Board by Article 10.11.1 to designate such parking areas.
3. Failure to Meet Burden of Proof: Ms. Ganer failed to establish that the VHA violated any of the cited articles. The judge noted that Ganer did not even allege that the VHA itself had improperly parked a vehicle.
4. Overall Finding: The decision states, “Upon consideration of all of the evidence presented in this matter, the Administrative Law Judge concludes that VHA did not violate CC&R Article 7 § 3, Article 10 § 10.11, and CC&R Article 12 § 2 when it adopted the parking policy.”
Final Order
“IT IS ORDERED, the petition is dismissed.”
The decision 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-H2020060-REL
Study Guide: Ganer v. Vincenz Homeowners Association
This guide provides a detailed review of the administrative law case Laura B. Ganer v. Vincenz Homeowners Association, Case No. 20F-H2020060-REL. It is designed to test comprehension of the facts, legal arguments, and final decision as presented in the source documents.
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Quiz: Short-Answer Questions
Instructions: Please answer the following questions in two to three complete sentences, using only information provided in the case decision.
1. Who were the petitioner and the respondent in this case, and what was their relationship within the community?
2. What specific action did the Vincenz Homeowners Association (VHA) take in 2020 that initiated this legal dispute?
3. List the three specific articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs) that petitioner Laura Ganer alleged were violated.
4. According to VHA’s CC&R Article 10 § 10.11.1, under what three conditions are private passenger automobiles and pickup trucks permitted to be parked?
5. What was Ms. Ganer’s primary argument for why the VHA’s new parking policy was “unreasonable” as defined under Article 7 § 3?
6. Upon what grounds did the VHA argue that the petition should be dismissed, relating to the petitioner’s specific allegations?
7. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision.
8. How did the VHA defend its adoption of the new parking policy without obtaining the 67% member vote required for amendments under Article 12 § 2?
9. What was the core reason the Administrative Law Judge concluded that Ms. Ganer failed to prove a violation of CC&R Article 10 § 10.11.1?
10. What was the final order issued by the Administrative Law Judge in this case?
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Answer Key
1. The petitioner was Laura B. Ganer, a property owner. The respondent was the Vincenz Homeowners Association (VHA). Ganer owned property within the planned community governed by the VHA.
2. In 2020, the VHA’s Board of Directors adopted a new parking policy that formally allowed on-street parking for certain vehicles in designated areas, such as in front of lots and common areas. This new policy prompted Ms. Ganer to file her petition.
3. Ms. Ganer alleged that the VHA violated Article 10, section 11; Article 7, section 3; and Article 12, section 2 of its Covenants, Conditions, and Restrictions.
4. CC&R Article 10 § 10.11.1 permits these vehicles to be parked within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
5. Ms. Ganer argued that the new policy was unreasonable because it allows for parking virtually everywhere within the VHA. She asserted that the original intention of the CC&Rs was to limit parking, not expand it so broadly.
6. The VHA argued for dismissal because Ms. Ganer did not contend, nor provide facts to establish, that the VHA had actually parked an automobile or pickup truck in any prohibited area. The VHA stated the Office of Administrative Hearings only had jurisdiction over alleged violations, not the mere adoption of a policy.
7. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.
8. The VHA contended that an amendment was not required to adopt the parking policy. It argued that CC&R Article 10 § 10.11.1 already granted the Board the specific authority to designate parking rules and regulations.
9. The Judge concluded that Ms. Ganer failed to prove a violation because she did not allege that the VHA had actually parked a vehicle in a prohibited area. The Judge noted that the covenant forbids parking in a roadway or garage unless it is in an area designated by the Board.
10. The final order was that the petition is dismissed. This means the judge ruled in favor of the respondent, Vincenz Homeowners Association, and against the petitioner, Laura Ganer.
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Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a detailed essay response for each prompt, drawing evidence and arguments directly from the provided legal decision.
1. Analyze the conflicting interpretations of CC&R Article 10 § 10.11.1 presented by Laura Ganer and the Vincenz Homeowners Association. How did the Administrative Law Judge resolve this conflict, and what does this reveal about the judicial interpretation of restrictive covenants?
2. Discuss the legal concept of “burden of proof” as it applied in this case. Explain who held the burden, what the standard was, and why the petitioner ultimately failed to meet it according to the Judge’s findings.
3. Examine the VHA’s argument that CC&R Article 7 § 3 (regarding the adoption of “Association Rules”) was not applicable to its creation of the new parking policy. Based on the text, what is the distinction between a board-designated rule under Article 10 and a formal “Association Rule” under Article 7?
4. Evaluate the petitioner’s claim that the new parking policy constituted an amendment to the Declaration, thereby violating CC&R Article 12 § 2, which requires a 67% member vote. Why was this argument unsuccessful, and what does the decision imply about the scope of a homeowner association board’s power?
5. Using the facts of the case, explain the procedural journey of a homeowner’s dispute within a planned community in Arizona, from the initial filing to the final administrative order.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes legal decisions. The ALJ in this matter was Velva Moses-Thompson.
Allowed Vehicles
A term from the VHA’s 2020 parking policy defining the types of vehicles permitted for on-street parking: private passenger automobiles and pickup trucks not exceeding one ton in capacity.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner bore the burden of proof.
An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or homeowners association.
Common Area
Land within a planned community owned by the association for the shared use and enjoyment of its members, such as a park.
Department
Refers to the Arizona Department of Real Estate, the state agency that received the initial petition from Ms. Ganer.
Notice of Hearing
A formal document issued by a legal body that sets the date, time, and location for a hearing and outlines the issues to be discussed. In this case, it was issued on July 1, 2020.
An acronym for the Office of Administrative Hearings, the state office where the evidentiary hearing for this case was held.
Petition
The formal written application filed by a party (the petitioner) to a legal body, initiating a case. Ms. Ganer filed her petition with the Department on or about May 20, 2020.
Petitioner
The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Laura B. Ganer.
Planned Community
A real estate development that includes common property and is governed by a homeowners’ association, with rules established by CC&Rs.
Preponderance of the Evidence
The evidentiary standard required to win a civil case, defined as proof that a contention is “more probably true than not.” It is a lower standard than “beyond a reasonable doubt.”
Restrictive Covenant
A provision in a deed or CC&R that limits the use of real property. In Arizona, if unambiguous, such covenants are enforced to give effect to the intent of the parties.
Respondent
The party against whom a petition is filed or who is responding to a lawsuit. In this case, the Vincenz Homeowners Association.
Blog Post – 20F-H2020060-REL
3 Surprising Lessons from One Homeowner’s Fight Against Her HOA’s New Parking Rules
For millions of homeowners, the relationship with their Homeowners Association (HOA) is often defined by a single, persistent source of frustration: parking rules. Whether it’s restrictions on street parking, rules about commercial vehicles, or limits on guest parking, these regulations are a frequent flashpoint for community disputes. We tend to think of these fights as homeowners pushing back against ever-tightening restrictions.
But what happens when the script is flipped? In a fascinating legal case from Arizona, a homeowner named Laura Ganer took her HOA to court not because the rules were too strict, but because the board enacted a new, more permissive parking policy. She believed the board had overstepped its authority by allowing on-street parking that had previously been forbidden.
The resulting decision from the Administrative Law Judge provides a masterclass in HOA governance. It peels back the layers of community documents to reveal how power is delegated and exercised. The outcome holds several surprising lessons for any homeowner who thinks they understand the rules of their community.
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1. The Devil in the Details: How a “Restriction” Became a Permission Slip
At the heart of Ms. Ganer’s case was her belief that the community’s founding documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were written to severely limit on-street parking. She pointed to what seemed like a clear and unambiguous rule in the Vincenz Homeowners Association (VHA) governing documents.
The rule, found in VHA CC&R Article 10 § 10.11.1, begins with a strong prohibition:
“No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”
For many residents, the rule’s intent seemed clear: keep cars in garages and driveways. The critical turn, however, lay not in the prohibition but in the exceptions that followed. The power was vested in a single, potent phrase authorizing the Board to act: “…or within areas designated for such purpose by the Board.” This clause, tucked at the end of the sentence, transformed a restrictive rule into a grant of discretionary power. The judge found this language gave the VHA Board explicit authority to create its new policy. This is a classic example of how governing documents are drafted to provide operational flexibility, allowing a future board to adapt to changing community needs without undergoing the arduous process of a full membership vote to amend the CC&Rs. The Board wasn’t breaking the rules; it was using a specific power granted to it all along.
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2. A Board Rule Isn’t a Bylaw Amendment (And Why It Matters)
Ms. Ganer raised two additional legal arguments. First, she contended that such a fundamental change to the community’s parking landscape was effectively an amendment to the CC&Rs. If it were an amendment, it would have required a community-wide vote and approval of “not less than sixty-seven percent (67%) of all Class A votes,” as stipulated in Article 12 § 2.
The VHA countered, and the judge agreed, that the Board was not amending the CC&Rs. Instead, it was exercising a power the document had already granted it in Article 10: the power to “designate” parking areas. Because the mechanism for the board to act was already in the foundational document, no amendment—and therefore no membership vote—was necessary.
Critically, Ms. Ganer also alleged a violation of Article 7 § 3 of the CC&Rs, which states that any “Association Rules shall be reasonable.” The VHA’s response to this claim was a deft legal maneuver. It argued that Article 7 § 3 did not apply because the Board didn’t adopt the parking policy under its general authority to make rules; it acted under the specific authority granted in Article 10. This distinction is vital in HOA governance, as it illustrates how a specific grant of power can sometimes bypass the general requirements that apply to other board actions.
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3. An Opinion Isn’t Proof: The Heavy Burden on the Homeowner
Ms. Ganer’s claim that the new policy was “unreasonable” because it allowed “parking virtually everywhere” was her attempt to prove a violation of Article 7 § 3. To an outside observer, this might seem like a fair point. But in a legal setting, a personal feeling of unreasonableness is not evidence.
The Administrative Law Judge noted that as the petitioner, Ms. Ganer had the “burden of proof” to show the HOA violated the CC&Rs “by a preponderance of the evidence.” This legal standard requires convincing proof, not just a strong opinion. The court document provides a clear definition:
“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 Ms. Ganer failed to meet this burden. Her assertion that the rule was unreasonable could not overcome the VHA’s argument that it had acted within the specific authority granted by Article 10. She did not provide convincing evidence of a violation, and the judge found in favor of the HOA, dismissing her petition entirely.
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Conclusion: The Ultimate Authority Is in the Fine Print
This case serves as a powerful lesson in HOA law, illustrating a key principle of document hierarchy. The ultimate authority is not what seems fair or what was historically done, but the exact wording in the community’s governing documents. A specific grant of authority will almost always override arguments based on general principles.
Here, the specific power to “designate” parking areas in Article 10 trumped both the general procedural requirement for a 67% vote for amendments in Article 12 and the general principle that rules must be “reasonable” under Article 7. Ms. Ganer’s challenge failed because the Board’s actions, while contrary to her expectations, were perfectly aligned with the powers the CC&Rs had given it from the start.
This case is a powerful reminder to read the fine print. When was the last time you read your community’s governing documents, and what powers might you be surprised to find your board already has?
Case Participants
Petitioner Side
Laura B Ganer(petitioner) Appeared on behalf of herself.
Respondent Side
Mark B. Sahl(HOA attorney) Vincenz Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Nicole Payne(recipient) Received transmission of the decision via US Mail.
The petition was dismissed because the Petitioner failed to prove that the Respondent HOA violated its CC&Rs (Article 7 § 3, Article 10 § 10.11, and Article 12 § 2) when adopting the new parking policy.
Why this result: Petitioner failed to meet the burden of proof to establish that Respondent violated its CC&Rs by a preponderance of the evidence.
Key Issues & Findings
Challenge to new HOA parking policy adoption
Petitioner alleged the VHA's new parking policy was unreasonable and improperly adopted without an amendment, violating specific CC&R sections.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Briefing Document: Ganer v. Vincenz Homeowners Association (Case No. 20F-H2020060-REL)
Executive Summary
This document provides an analysis of the Administrative Law Judge Decision in the case of Laura B. Ganer vs. the Vincenz Homeowners Association (VHA), case number 20F-H2020060-REL. The central dispute concerned a new on-street parking policy adopted by the VHA Board in 2020. The petitioner, Ms. Ganer, alleged this policy violated multiple articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs).
The Administrative Law Judge, Velva Moses-Thompson, ultimately dismissed the petition. The court concluded that the VHA Board acted within the explicit authority granted to it by the community’s governing documents, specifically CC&R Article 10, § 10.11.1, which empowers the Board to designate parking areas. The judge found that the petitioner failed to meet the burden of proof—a “preponderance of the evidence”—to establish that the VHA had violated its CC&Rs. The decision affirmed the Board’s right to establish rules and regulations for parking as outlined in the CC&Rs without requiring a full membership vote for an amendment.
Background of the Dispute
The case originated from a single-issue petition filed by homeowner Laura B. Ganer with the Arizona Department of Real Estate on or about May 20, 2020. The petition alleged that the Vincenz Homeowners Association violated its governing documents by adopting a new parking policy.
• Parties:
◦ Petitioner: Laura B. Ganer, a property owner within the VHA.
◦ Respondent: Vincenz Homeowners Association (VHA).
• Catalyst: The VHA Board of Directors adopted a new on-street parking policy in 2020.
• Alleged Violations: The petition claimed the new policy violated VHA CC&R Article 10, Section 11; Article 7, Section 3; and Article 12, Section 2.
• Legal Forum: The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing, which took place on August 27, 2020.
The Contested 2020 Parking Policy
The policy adopted by the VHA Board resolved to allow on-street parking for specific vehicles in designated areas, provided the parking complied with associated rules.
• Allowed Vehicles: Private passenger automobiles and pickup trucks that do not exceed one ton in capacity.
• Designated Parking Areas:
1. Immediately in front of a Lot, for vehicles associated with the owner, resident, or their guests, or with the lot owner’s consent.
2. Immediately in front of any Common Area park within the Association.
3. Along any public street within the Association that does not border a Lot (e.g., in front of a Common Area tract).
Core Legal Arguments and Cited CC&Rs
The dispute centered on whether the VHA Board had the authority to enact the new parking policy or if doing so violated the foundational CC&Rs.
Petitioner’s Position (Laura B. Ganer)
Ms. Ganer argued that the new policy fundamentally contradicted the intent and letter of the CC&Rs.
• Violation of Article 10: She asserted that the original intention of CC&R Article 10, Section 10.11.1 was to limit parking within the VHA.
• Violation of Article 7: She contended the policy violates Article 7, Section 3, because it is “unreasonable” by allowing parking “virtually everywhere” within the community.
• Implicit Amendment: The new policy was so expansive that it effectively constituted an amendment to the CC&Rs, which would require the procedure outlined in Article 12, Section 2 (a 67% member vote), not just a Board resolution.
Respondent’s Position (Vincenz HOA)
The VHA argued that its actions were a proper exercise of the authority explicitly granted to the Board in the CC&Rs.
• Authority from Article 10: VHA contended that CC&R Article 10, § 10.11.1 expressly allows the Board to create parking rules by permitting parking “within areas designated for such purpose by the Board.”
• Inapplicability of Article 7: The Association argued that Article 7, Section 3, which governs general “Association Rules,” did not apply because the parking policy was adopted under the specific authority of Article 10.
• No Amendment Required: VHA maintained that since Article 10 grants the Board the power to adopt parking rules and regulations, an amendment to the CC&Rs under Article 12, Section 2 was not necessary.
• Jurisdictional Argument: VHA also argued that the petition should be dismissed because Ms. Ganer failed to allege or provide facts that the VHA itself had improperly parked a vehicle in violation of the CC&Rs.
Relevant Articles from VHA CC&Rs
Article
Section
Provision Text
Article 10
§ 10.11.1
“Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”
Article 10
§ 10.11.2
Governs restrictions on other vehicles like RVs, boats, and commercial vehicles, but allows the Board to designate areas and rules for them.
Article 7
“By a majority vote of the Board, the Association may… adopt, amend and repeal the Association Rules. The Association Rules shall be reasonable… and shall not be inconsistent with this Declaration…”
Article 12
“Except as otherwise provided in this Declaration, this Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of: (a) Members holding not less than sixty-seven percent (67%) of all Class A votes…”
Administrative Law Judge’s Findings and Decision
The Administrative Law Judge’s decision, issued on September 16, 2020, was based on a direct interpretation of the VHA’s governing documents and the evidence presented.
Legal Standard and Burden of Proof
• The petitioner, Ms. Ganer, bore the burden of proving her allegations by a “preponderance of the evidence,” defined as evidence that is more probably true than not.
• In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties, and they must be construed as a whole.
Conclusions of Law
1. Interpretation of Article 10: The judge found that CC&R Article 10, Section 10.11.1 unambiguously forbids parking except in specified locations, including “in an area that has… been designated for parking by the Board.”
2. Board Authority: The court concluded that the VHA’s adoption of the parking policy was a valid exercise of the authority explicitly granted to the Board by Article 10.11.1 to designate such parking areas.
3. Failure to Meet Burden of Proof: Ms. Ganer failed to establish that the VHA violated any of the cited articles. The judge noted that Ganer did not even allege that the VHA itself had improperly parked a vehicle.
4. Overall Finding: The decision states, “Upon consideration of all of the evidence presented in this matter, the Administrative Law Judge concludes that VHA did not violate CC&R Article 7 § 3, Article 10 § 10.11, and CC&R Article 12 § 2 when it adopted the parking policy.”
Final Order
“IT IS ORDERED, the petition is dismissed.”
The decision 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-H2020060-REL
Study Guide: Ganer v. Vincenz Homeowners Association
This guide provides a detailed review of the administrative law case Laura B. Ganer v. Vincenz Homeowners Association, Case No. 20F-H2020060-REL. It is designed to test comprehension of the facts, legal arguments, and final decision as presented in the source documents.
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Quiz: Short-Answer Questions
Instructions: Please answer the following questions in two to three complete sentences, using only information provided in the case decision.
1. Who were the petitioner and the respondent in this case, and what was their relationship within the community?
2. What specific action did the Vincenz Homeowners Association (VHA) take in 2020 that initiated this legal dispute?
3. List the three specific articles of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs) that petitioner Laura Ganer alleged were violated.
4. According to VHA’s CC&R Article 10 § 10.11.1, under what three conditions are private passenger automobiles and pickup trucks permitted to be parked?
5. What was Ms. Ganer’s primary argument for why the VHA’s new parking policy was “unreasonable” as defined under Article 7 § 3?
6. Upon what grounds did the VHA argue that the petition should be dismissed, relating to the petitioner’s specific allegations?
7. Explain the legal standard of “preponderance of the evidence” as defined in the Administrative Law Judge’s decision.
8. How did the VHA defend its adoption of the new parking policy without obtaining the 67% member vote required for amendments under Article 12 § 2?
9. What was the core reason the Administrative Law Judge concluded that Ms. Ganer failed to prove a violation of CC&R Article 10 § 10.11.1?
10. What was the final order issued by the Administrative Law Judge in this case?
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Answer Key
1. The petitioner was Laura B. Ganer, a property owner. The respondent was the Vincenz Homeowners Association (VHA). Ganer owned property within the planned community governed by the VHA.
2. In 2020, the VHA’s Board of Directors adopted a new parking policy that formally allowed on-street parking for certain vehicles in designated areas, such as in front of lots and common areas. This new policy prompted Ms. Ganer to file her petition.
3. Ms. Ganer alleged that the VHA violated Article 10, section 11; Article 7, section 3; and Article 12, section 2 of its Covenants, Conditions, and Restrictions.
4. CC&R Article 10 § 10.11.1 permits these vehicles to be parked within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
5. Ms. Ganer argued that the new policy was unreasonable because it allows for parking virtually everywhere within the VHA. She asserted that the original intention of the CC&Rs was to limit parking, not expand it so broadly.
6. The VHA argued for dismissal because Ms. Ganer did not contend, nor provide facts to establish, that the VHA had actually parked an automobile or pickup truck in any prohibited area. The VHA stated the Office of Administrative Hearings only had jurisdiction over alleged violations, not the mere adoption of a policy.
7. “Preponderance of the evidence” is defined as proof that convinces the trier of fact that a contention is more probably true than not. It is described as the greater weight of evidence that is sufficient to incline a fair and impartial mind to one side of an issue over the other.
8. The VHA contended that an amendment was not required to adopt the parking policy. It argued that CC&R Article 10 § 10.11.1 already granted the Board the specific authority to designate parking rules and regulations.
9. The Judge concluded that Ms. Ganer failed to prove a violation because she did not allege that the VHA had actually parked a vehicle in a prohibited area. The Judge noted that the covenant forbids parking in a roadway or garage unless it is in an area designated by the Board.
10. The final order was that the petition is dismissed. This means the judge ruled in favor of the respondent, Vincenz Homeowners Association, and against the petitioner, Laura Ganer.
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Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate a detailed essay response for each prompt, drawing evidence and arguments directly from the provided legal decision.
1. Analyze the conflicting interpretations of CC&R Article 10 § 10.11.1 presented by Laura Ganer and the Vincenz Homeowners Association. How did the Administrative Law Judge resolve this conflict, and what does this reveal about the judicial interpretation of restrictive covenants?
2. Discuss the legal concept of “burden of proof” as it applied in this case. Explain who held the burden, what the standard was, and why the petitioner ultimately failed to meet it according to the Judge’s findings.
3. Examine the VHA’s argument that CC&R Article 7 § 3 (regarding the adoption of “Association Rules”) was not applicable to its creation of the new parking policy. Based on the text, what is the distinction between a board-designated rule under Article 10 and a formal “Association Rule” under Article 7?
4. Evaluate the petitioner’s claim that the new parking policy constituted an amendment to the Declaration, thereby violating CC&R Article 12 § 2, which requires a 67% member vote. Why was this argument unsuccessful, and what does the decision imply about the scope of a homeowner association board’s power?
5. Using the facts of the case, explain the procedural journey of a homeowner’s dispute within a planned community in Arizona, from the initial filing to the final administrative order.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over hearings at an administrative agency (in this case, the Office of Administrative Hearings) and makes legal decisions. The ALJ in this matter was Velva Moses-Thompson.
Allowed Vehicles
A term from the VHA’s 2020 parking policy defining the types of vehicles permitted for on-street parking: private passenger automobiles and pickup trucks not exceeding one ton in capacity.
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this case, the petitioner bore the burden of proof.
An acronym for Covenants, Conditions, and Restrictions. These are the governing legal documents that set out the rules for a planned community or homeowners association.
Common Area
Land within a planned community owned by the association for the shared use and enjoyment of its members, such as a park.
Department
Refers to the Arizona Department of Real Estate, the state agency that received the initial petition from Ms. Ganer.
Notice of Hearing
A formal document issued by a legal body that sets the date, time, and location for a hearing and outlines the issues to be discussed. In this case, it was issued on July 1, 2020.
An acronym for the Office of Administrative Hearings, the state office where the evidentiary hearing for this case was held.
Petition
The formal written application filed by a party (the petitioner) to a legal body, initiating a case. Ms. Ganer filed her petition with the Department on or about May 20, 2020.
Petitioner
The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, Laura B. Ganer.
Planned Community
A real estate development that includes common property and is governed by a homeowners’ association, with rules established by CC&Rs.
Preponderance of the Evidence
The evidentiary standard required to win a civil case, defined as proof that a contention is “more probably true than not.” It is a lower standard than “beyond a reasonable doubt.”
Restrictive Covenant
A provision in a deed or CC&R that limits the use of real property. In Arizona, if unambiguous, such covenants are enforced to give effect to the intent of the parties.
Respondent
The party against whom a petition is filed or who is responding to a lawsuit. In this case, the Vincenz Homeowners Association.
Blog Post – 20F-H2020060-REL
3 Surprising Lessons from One Homeowner’s Fight Against Her HOA’s New Parking Rules
For millions of homeowners, the relationship with their Homeowners Association (HOA) is often defined by a single, persistent source of frustration: parking rules. Whether it’s restrictions on street parking, rules about commercial vehicles, or limits on guest parking, these regulations are a frequent flashpoint for community disputes. We tend to think of these fights as homeowners pushing back against ever-tightening restrictions.
But what happens when the script is flipped? In a fascinating legal case from Arizona, a homeowner named Laura Ganer took her HOA to court not because the rules were too strict, but because the board enacted a new, more permissive parking policy. She believed the board had overstepped its authority by allowing on-street parking that had previously been forbidden.
The resulting decision from the Administrative Law Judge provides a masterclass in HOA governance. It peels back the layers of community documents to reveal how power is delegated and exercised. The outcome holds several surprising lessons for any homeowner who thinks they understand the rules of their community.
——————————————————————————–
1. The Devil in the Details: How a “Restriction” Became a Permission Slip
At the heart of Ms. Ganer’s case was her belief that the community’s founding documents—the Covenants, Conditions, and Restrictions (CC&Rs)—were written to severely limit on-street parking. She pointed to what seemed like a clear and unambiguous rule in the Vincenz Homeowners Association (VHA) governing documents.
The rule, found in VHA CC&R Article 10 § 10.11.1, begins with a strong prohibition:
“No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.”
For many residents, the rule’s intent seemed clear: keep cars in garages and driveways. The critical turn, however, lay not in the prohibition but in the exceptions that followed. The power was vested in a single, potent phrase authorizing the Board to act: “…or within areas designated for such purpose by the Board.” This clause, tucked at the end of the sentence, transformed a restrictive rule into a grant of discretionary power. The judge found this language gave the VHA Board explicit authority to create its new policy. This is a classic example of how governing documents are drafted to provide operational flexibility, allowing a future board to adapt to changing community needs without undergoing the arduous process of a full membership vote to amend the CC&Rs. The Board wasn’t breaking the rules; it was using a specific power granted to it all along.
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2. A Board Rule Isn’t a Bylaw Amendment (And Why It Matters)
Ms. Ganer raised two additional legal arguments. First, she contended that such a fundamental change to the community’s parking landscape was effectively an amendment to the CC&Rs. If it were an amendment, it would have required a community-wide vote and approval of “not less than sixty-seven percent (67%) of all Class A votes,” as stipulated in Article 12 § 2.
The VHA countered, and the judge agreed, that the Board was not amending the CC&Rs. Instead, it was exercising a power the document had already granted it in Article 10: the power to “designate” parking areas. Because the mechanism for the board to act was already in the foundational document, no amendment—and therefore no membership vote—was necessary.
Critically, Ms. Ganer also alleged a violation of Article 7 § 3 of the CC&Rs, which states that any “Association Rules shall be reasonable.” The VHA’s response to this claim was a deft legal maneuver. It argued that Article 7 § 3 did not apply because the Board didn’t adopt the parking policy under its general authority to make rules; it acted under the specific authority granted in Article 10. This distinction is vital in HOA governance, as it illustrates how a specific grant of power can sometimes bypass the general requirements that apply to other board actions.
——————————————————————————–
3. An Opinion Isn’t Proof: The Heavy Burden on the Homeowner
Ms. Ganer’s claim that the new policy was “unreasonable” because it allowed “parking virtually everywhere” was her attempt to prove a violation of Article 7 § 3. To an outside observer, this might seem like a fair point. But in a legal setting, a personal feeling of unreasonableness is not evidence.
The Administrative Law Judge noted that as the petitioner, Ms. Ganer had the “burden of proof” to show the HOA violated the CC&Rs “by a preponderance of the evidence.” This legal standard requires convincing proof, not just a strong opinion. The court document provides a clear definition:
“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 Ms. Ganer failed to meet this burden. Her assertion that the rule was unreasonable could not overcome the VHA’s argument that it had acted within the specific authority granted by Article 10. She did not provide convincing evidence of a violation, and the judge found in favor of the HOA, dismissing her petition entirely.
——————————————————————————–
Conclusion: The Ultimate Authority Is in the Fine Print
This case serves as a powerful lesson in HOA law, illustrating a key principle of document hierarchy. The ultimate authority is not what seems fair or what was historically done, but the exact wording in the community’s governing documents. A specific grant of authority will almost always override arguments based on general principles.
Here, the specific power to “designate” parking areas in Article 10 trumped both the general procedural requirement for a 67% vote for amendments in Article 12 and the general principle that rules must be “reasonable” under Article 7. Ms. Ganer’s challenge failed because the Board’s actions, while contrary to her expectations, were perfectly aligned with the powers the CC&Rs had given it from the start.
This case is a powerful reminder to read the fine print. When was the last time you read your community’s governing documents, and what powers might you be surprised to find your board already has?
Case Participants
Petitioner Side
Laura B Ganer(petitioner) Appeared on behalf of herself.
Respondent Side
Mark B. Sahl(HOA attorney) Vincenz Homeowners Association
Neutral Parties
Velva Moses-Thompson(ALJ) OAH
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
Nicole Payne(recipient) Received transmission of the decision via US Mail.
The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.
Key Issues & Findings
Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver
Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Analytics Highlights
Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020043-REL Decision – 820839.pdf
Uploaded 2025-10-09T03:34:53 (95.4 KB)
Briefing Doc – 20F-H2020043-REL
Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)
Executive Summary
This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.
The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.
Case Background
• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.
• Respondent: Vincenz Homeowners’ Association (VHA).
• Tribunal: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.
• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.
• Hearing Date: An evidentiary hearing was held on August 19, 2020.
• Decision Date: The final decision was issued on September 8, 2020.
The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.
Central Dispute: CC&R Article 10, Section 10.11.1
The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.
Article 10 § 10.11.1 provides:
Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.
Positions of the Parties
Petitioner’s Position (Wendy Ellsworth)
Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.
• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.
• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”
• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.
Respondent’s Position (Vincenz Homeowners’ Association)
The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.
• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.
• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.
• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.
Administrative Law Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.
Legal Standards Applied
Standard
Description
Burden of Proof
The Petitioner bears the burden to prove a violation by a preponderance of the evidence.
Preponderance of the Evidence
Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”
Covenant Interpretation
In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.
Conclusion 1: Failure to Establish a Violation
The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:
• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.
Conclusion 2: Lack of Jurisdiction
The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.
• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.
Final Order and Implications
Based on the findings, the final order was unambiguous:
“IT IS ORDERED, the petition is dismissed.”
The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020043-REL
Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).
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Review Quiz
Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific rule, or covenant, was at the center of the dispute?
3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?
4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?
5. What change occurred in Ms. Ellsworth’s testimony during the hearing?
6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?
7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?
8. What two key reasons did the Administrative Law Judge give for dismissing the petition?
9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?
10. What action could the parties take after the order was issued, and within what timeframe?
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Answer Key
1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.
2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.
3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.
4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.
5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.
6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.
7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.
8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.
9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).
10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.
1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?
2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.
3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.
4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?
5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.
Affirmative Defense
A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.
ARIZ. REV. STAT. (A.R.S.)
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.
Jurisdiction
The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.
Office of Administrative Hearings (OAH)
The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.
Petitioner
The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.
Restrictive Covenant
A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.
Waiver
The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.
Blog Post – 20F-H2020043-REL
Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons
The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).
Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.
Lesson 1: You Must Accuse the Right Party of the Right Violation
Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.
This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:
“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.
Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase
In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”
The court defined this standard as:
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”
The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.
Lesson 3: You Have to Knock on the Right Legal Door
The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.
The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.
The Administrative Law Judge made this point unequivocally:
“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.
Conclusion: Thinking Like a Lawyer, Not Just a Homeowner
Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.
While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?
Case Participants
Petitioner Side
Wendy Ellsworth(petitioner) Testified at hearing
Brian Hatch(petitioner attorney) Brian A. Hatch PLLC
Respondent Side
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.
Key Issues & Findings
Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver
Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Analytics Highlights
Topics: HOA Enforcement, CC&R Violation, Parking, Waiver, Jurisdiction
Additional Citations:
ARIZ. REV. STAT. § 32-2199.01(A)
ARIZ. REV. STAT. § 32-2199(B)
ARIZ. REV. STAT. § 33-1803
ARIZ. REV. STAT. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
ARIZ. REV. STAT. § 32-2199.02(B)
ARIZ. REV. STAT. § 32-2199.04
ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020043-REL Decision – 820839.pdf
Uploaded 2026-01-23T17:31:39 (95.4 KB)
Briefing Doc – 20F-H2020043-REL
Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)
Executive Summary
This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.
The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.
Case Background
• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.
• Respondent: Vincenz Homeowners’ Association (VHA).
• Tribunal: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.
• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.
• Hearing Date: An evidentiary hearing was held on August 19, 2020.
• Decision Date: The final decision was issued on September 8, 2020.
The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.
Central Dispute: CC&R Article 10, Section 10.11.1
The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.
Article 10 § 10.11.1 provides:
Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.
Positions of the Parties
Petitioner’s Position (Wendy Ellsworth)
Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.
• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.
• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”
• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.
Respondent’s Position (Vincenz Homeowners’ Association)
The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.
• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.
• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.
• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.
Administrative Law Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.
Legal Standards Applied
Standard
Description
Burden of Proof
The Petitioner bears the burden to prove a violation by a preponderance of the evidence.
Preponderance of the Evidence
Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”
Covenant Interpretation
In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.
Conclusion 1: Failure to Establish a Violation
The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:
• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.
Conclusion 2: Lack of Jurisdiction
The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.
• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.
Final Order and Implications
Based on the findings, the final order was unambiguous:
“IT IS ORDERED, the petition is dismissed.”
The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide – 20F-H2020043-REL
Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).
——————————————————————————–
Review Quiz
Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific rule, or covenant, was at the center of the dispute?
3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?
4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?
5. What change occurred in Ms. Ellsworth’s testimony during the hearing?
6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?
7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?
8. What two key reasons did the Administrative Law Judge give for dismissing the petition?
9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?
10. What action could the parties take after the order was issued, and within what timeframe?
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Answer Key
1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.
2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.
3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.
4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.
5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.
6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.
7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.
8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.
9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).
10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.
1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?
2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.
3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.
4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?
5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.
Affirmative Defense
A set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.
ARIZ. REV. STAT. (A.R.S.)
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.
Jurisdiction
The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.
Office of Administrative Hearings (OAH)
The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.
Petitioner
The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.
Restrictive Covenant
A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.
Waiver
The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.
Blog Post – 20F-H2020043-REL
Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons
The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).
Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.
Lesson 1: You Must Accuse the Right Party of the Right Violation
Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.
This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:
“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.
Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase
In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”
The court defined this standard as:
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”
The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.
Lesson 3: You Have to Knock on the Right Legal Door
The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.
The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.
The Administrative Law Judge made this point unequivocally:
“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.
Conclusion: Thinking Like a Lawyer, Not Just a Homeowner
Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.
While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?
Case Participants
Petitioner Side
Wendy Ellsworth(petitioner) Testified at hearing
Brian Hatch(petitioner attorney) Brian A. Hatch PLLC
Respondent Side
Mark K. Sahl(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Velva Moses-Thompson(ALJ)
Judy Lowe(Commissioner) Arizona Department of Real Estate
ARIZ. REV. STAT. §§ 33-1804(A), 33-1804(B), 33-1804(F), and Association bylaws 2.3, 2.7, and 3.1
Outcome Summary
The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.
Why this result: The ALJ found that notice of the meeting modification (to an online platform due to COVID-19) was timely and proper, and Petitioner's claimed denial of the right to speak was the result of user error of the online platform, not action by the Association. Furthermore, the decision to hold elections for all five open Board positions was deemed appropriate due to carryover vacancies resulting from a lack of quorum in the prior year (2019).
Key Issues & Findings
Alleged violations regarding Annual Meeting notice (change in venue), right to speak, proper call to order, and staggered board voting.
Petitioner filed a quadruple-issue petition alleging the Association violated statutes and bylaws concerning the April 02, 2020, annual meeting, specifically regarding insufficient notice for the venue change (due to COVID-19), denial of the right to speak (via online chat), improper chair delegation, and failure to stagger Board elections.
Orders: Petitioner’s petition is denied.
Filing fee: $2,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 33-1804(F)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. ADMIN. CODE R4-9-117
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: COVID-19, Virtual Meeting, Notice, Right to Speak, Elections, Bylaws, Quorum, User Error
Additional Citations:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 33-1804(F)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. ADMIN. CODE R4-9-117
Video Overview
Audio Overview
Decision Documents
20F-H2020061-REL Decision – 819907.pdf
Uploaded 2025-10-09T03:35:29 (149.3 KB)
Briefing Doc – 20F-H2020061-REL
Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.
The critical takeaways from the decision are as follows:
• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.
• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.
• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.
• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.
Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.
I. Case Overview
This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.
• Case Number: 20F-H2020061-REL
• Presiding Judge: Administrative Law Judge Jenna Clark
• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)
• Respondent: Coronado Ranch Community Association (HOA)
• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.
II. Petitioner’s Allegations
On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:
1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.
2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).
3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.
4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.
III. Factual Chronology and Key Evidence
The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.
Feb. 20, 2020
The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.
Mar. 12, 2020
The Association mails election ballots to all Members.
Mar. 19, 2020
Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.
~Mar. 25, 2020
The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.
Mar. 25 – Apr. 1
The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.
Mar. 30, 2020
Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.
Apr. 1, 2020
Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.
Apr. 2, 2020
The Annual Meeting is held via ClickMeeting. • President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting. • A quorum is achieved based on attendees and absentee ballots. • An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting. • The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting. • At least 26 other Members successfully use the chat feature.
IV. Analysis of Key Issues and Legal Conclusions
The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.
A. Meeting Notice and Venue Change
• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).
• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.
• Supporting Evidence:
◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.
◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”
◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.
B. Right to Speak
• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).
• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.
• Supporting Evidence:
◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.
◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”
◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”
C. Conduct of Meeting
• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).
• Finding: The petition was denied on this point. The meeting was lawfully conducted.
• Supporting Evidence:
◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.
◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”
D. Board of Directors Election
• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).
• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”
• Supporting Evidence:
◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.
◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.
◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”
V. Final Order and Disposition
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.
• Order: “IT IS ORDERED that Petitioner’s petition be denied.”
• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”
• Date of Order: The decision was issued on September 3, 2020.
Study Guide – 20F-H2020061-REL
Study Guide: Paparazzo v. Coronado Ranch Community Association
This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 20F-H2020061-REL, Samuel T Paparazzo v. Coronado Ranch Community Association.
Short-Answer Quiz
Answer the following questions in 2-3 sentences, based on the information provided in the case document.
1. Who were the primary parties in this case, and what were their roles?
2. What were the four specific allegations the Petitioner made against the Association regarding its Annual Meeting?
3. How did the Association notify its members of the change from an in-person meeting to a virtual one?
4. What was the legal justification for the Association’s decision to move the Annual Meeting to an online platform?
5. What evidence was presented to counter the Petitioner’s claim that he was “blocked” from using the online chat feature?
6. According to the Association’s bylaws, who has the authority to chair the annual meeting and delegate that responsibility?
7. Why did the 2020 Board of Directors election involve voting for all five open positions instead of being staggered?
8. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this hearing?
9. What two key Arizona Revised Statutes (ARIZ. REV. STAT.) relate to member meeting notices and the right to speak?
10. What was the final order issued by the Administrative Law Judge, and what was the core reasoning behind it?
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Answer Key
1. The primary parties were Samuel T. Paparazzo, the Petitioner, who is a property owner and member of the Association, and the Coronado Ranch Community Association, the Respondent, which is the homeowners’ association for the subdivision. The Petitioner brought the complaint, and the Respondent defended its actions.
2. The Petitioner alleged that: (i) inadequate notice of the “change in venue” was given; (ii) he was denied his right to speak by being blocked from the online chat feature; (iii) the meeting was not properly called to order; and (iv) the Board of Directors vote was not properly “staggered.”
3. The Association notified members of the move to the ClickMeeting platform by placing 12 signs at 6 common entrances, sending three separate emails to approximately 750 members, and placing 2 signs at the entrance of the originally scheduled location, Coronado Elementary School.
4. The legal justification was the need to comply with executive orders issued by Arizona Governor Douglas Ducey (2020-09, 2020-12, and 2020-18) to slow the spread of COVID-19. The online platform was adopted to allow homeowners to safely access the meeting while adhering to physical distancing mandates.
5. The evidence showed that the Petitioner wrote messages but never hit the “enter” key or “send” button to transmit them. Furthermore, the record indicates that no less than 26 other members successfully used the chat feature during the meeting.
6. According to Bylaw Section 2.7, the President of the Association, Bob Hicks, has the authority to call the meeting to order and chair it. The Petitioner conceded during cross-examination that President Hicks had the authority to delegate the chairing of the meeting to the Association’s Managing Agent, Kevin Bishop.
7. The election involved all five positions because a quorum had not been achieved at the Association’s 2019 annual meeting. This lack of a quorum prevented a vote from taking place, resulting in a carryover of all open board seats to the 2020 election.
8. A “preponderance of the evidence” is the standard of proof required, meaning the evidence must be more probably true than not. In this proceeding, the Petitioner, Samuel Paparazzo, bore the burden of proving his allegations by this standard.
9. ARIZ. REV. STAT. § 33-1804(B) requires notice to be sent not fewer than 10 nor more than 50 days in advance of a meeting. ARIZ. REV. STAT. § 33-1804(A) ensures that all meetings are open to members and that members are permitted to attend and speak at an appropriate time.
10. The final order was that the Petitioner’s petition be denied. The judge reasoned that the Petitioner failed to sustain his burden of proof, as the evidence showed the Association’s actions were lawful and appropriate responses to the circumstances, and the Petitioner’s inability to participate was due to user error.
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Essay Questions
The following questions are designed for deeper analysis of the case. No answers are provided.
1. Analyze the role of the COVID-19 pandemic and the associated executive orders in the events of this case. How did these external factors influence the Association’s actions and the Administrative Law Judge’s final decision?
2. The judge concluded that the Petitioner’s inability to use the chat function was due to “user error.” Discuss the evidence that supports this conclusion and explore the legal line between an association’s responsibility to provide access and a member’s responsibility to utilize the provided tools correctly.
3. Explain the relationship between the Association’s governing documents (CC&Rs and Bylaws) and Arizona state law (ARIZ. REV. STAT.). How did the judge use both to evaluate the legality of the Association’s handling of the annual meeting and election?
4. The Petitioner argued that the online platform constituted a “change in venue” that required more extensive notice. Based on the judge’s decision, evaluate the legal merits of this argument in the context of a virtual meeting necessitated by a public health crisis.
5. Discuss the concept of “quorum” as it applied to both the 2019 and 2020 annual meetings. How did the failure to achieve quorum in one year directly impact the procedures and outcome of the election in the following year?
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Glossary of Key Terms
Definition from Context
Administrative Law Judge (ALJ)
An independent judicial officer (Jenna Clark in this case) from the Office of Administrative Hearings who conducts evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona. Title 33, Chapter 16, Article 1 specifically regulates planned communities (homeowners’ associations).
Association
The Coronado Ranch Community Association, the homeowners’ association for the residential development in Gilbert, Arizona. It is governed by its CC&Rs and overseen by a Board of Directors.
Bylaws
The governing documents of the Association that detail the structure of day-to-day governance, including voting processes, quorum requirements, meeting provisions, and other operating guidelines.
Covenants, Conditions, and Restrictions. These form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use within the development.
Declarant Control Period
An initial period in an association’s history where the developer (the “Declarant”) controls the Board of Directors. In this case, this period ended for the Association in 2005.
Department
The Arizona Department of Real Estate, the state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
The Office of Administrative Hearings, an independent state agency that was referred this matter to conduct an evidentiary hearing and decide the case.
Petitioner
Samuel T. Paparazzo, the property owner and Association member who filed the petition with the Department, alleging violations by the Association.
Preponderance of the Evidence
The burden of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of evidence.
Quorum
The minimum number of members required to be present or represented by ballot for a meeting to be valid and for votes to be taken. The failure to achieve quorum at the 2019 meeting resulted in a carryover of open board seats.
Respondent
The Coronado Ranch Community Association, the party against whom the petition was filed. The Respondent denied all allegations and was represented by legal counsel.
Blog Post – 20F-H2020061-REL
He Sued His HOA Over a Virtual Meeting—The Judge’s Ruling Contains 4 Critical Lessons for Every Homeowner
Introduction: The New Battlefield for Neighborhood Disputes
Cast your mind back to the chaotic spring of 2020. The world was locking down, businesses were scrambling to go remote, and the delicate social contracts of our neighborhoods were fraying. For millions living in Homeowners’ Associations, this meant the abrupt cancellation of in-person meetings, replaced by a frantic pivot to unfamiliar virtual platforms. In this pressure cooker of uncertainty and technical glitches, minor grievances quickly escalated into major legal battles.
The case of Paparazzo vs. Coronado Ranch Community Association is a quintessential legal drama of that era. A frustrated homeowner, believing he was silenced and his rights ignored during a virtual meeting, took his HOA to court. The judge’s decision, however, serves as a powerful cautionary tale. It distills four surprising and impactful lessons that every homeowner should understand as community governance becomes increasingly digital.
1. The Takeaway: You Can’t Claim You Were Silenced If You Forgot to Hit ‘Send’
The petitioner, Samuel Paparazzo, leveled a serious charge: that the HOA had denied his right to speak by “blocking” him from using the online chat feature during the annual meeting. In his view, this was an intentional act of suppression.
The digital evidence, however, told a very different story. While Mr. Paparazzo had typed several messages, he had never actually transmitted them by hitting the “enter” key or clicking the “send” button. While he did email for assistance during the meeting without receiving a timely response, the court found the chat feature was fully functional, proven by the fact that at least 26 other members used it successfully. The judge’s ruling was a stark lesson in digital accountability:
Petitioner’s inability to effectively communicate with the Association during the annual meeting was the result of user error. … The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.
This establishes a critical precedent for our digital age. The analysis here goes beyond simple “user error.” It suggests that a baseline of digital literacy is becoming a prerequisite for effective civic participation. Courts may have little sympathy for claims of disenfranchisement that stem from a failure to master the basic tools of modern communication.
2. The Takeaway: An Emergency Can Justify Last-Minute Changes
Next, the petitioner challenged the HOA on procedural grounds—a classic move in community disputes. He argued that the association failed to provide proper notice for the virtual meeting. The HOA had correctly noticed its in-person meeting for April 2, 2020, back on February 20. But by late March, holding that meeting had become impossible.
The judge’s response to this claim is a masterclass in how legal “reasonableness” can override rigid bylaws during a crisis. The court noted the rapidly evolving timeline of the pandemic: Governor Ducey issued executive orders limiting business operations on March 19, prohibiting the closure of essential services on March 23, and issuing the “Stay Home” order on March 30. Faced with these superseding government mandates, the HOA moved the meeting online on March 25.
Crucially, the HOA’s communication efforts were extensive and documented. They didn’t just send a single email. The board notified its members by:
• Placing 12 signs at 6 common entrances to the community.
• Sending three separate email blasts to approximately 750 members, which had an average open rate of 63.53%.
• Placing 2 additional signs at the entrance to the originally scheduled location, Coronado Elementary School.
The judge concluded that the HOA’s actions were a justifiable response to an unprecedented emergency. This wasn’t a board ignoring its rules; it was a board taking necessary steps to comply with government orders and protect its members, legally justifying the short-notice change in format.
3. The Takeaway: Just Showing Up Can Waive Your Right to Complain
This lesson hinges on a legal concept every homeowner must understand: waiver by attendance. Buried in the association’s bylaws was Section 2.3, which states: “A Member’s attendance at a meeting waives objection to the lack of notice or defective notice of the meeting.”
This is not mere legalese; it’s a common and powerful clause designed to ensure the finality of meetings. It prevents a member from strategically attending a meeting, remaining silent about a potential procedural flaw, and then launching a lawsuit later if they don’t like the outcome. The judge noted that the petitioner attended the virtual meeting but did not object to the notice “prior to or during” the event. By participating without raising a formal objection at the time, he legally accepted the meeting’s procedures and waived his right to challenge them later.
4. The Takeaway: The Past Can Haunt the Present
The petitioner’s final major complaint appeared to be a slam dunk: the election for the Board of Directors was not “staggered” as explicitly required by Bylaws Section 3.1. Instead of a mix of one- and two-year terms to ensure continuity, all five open board positions were elected at once. On its face, this was a clear violation.
But the reason for this anomaly demonstrates the domino effect of governance. The judge found that in the previous year, 2019, the association had failed to achieve a quorum for its annual meeting. Because there was no quorum, no vote could occur, creating a “carryover of open seats.” This failure in 2019 created a governance debt that had to be paid in 2020. The only lawful way to do so was to elect members to all five vacant positions. This shows that an HOA is a continuous legal entity; one year’s procedural failure doesn’t just disappear—it creates unusual but legally necessary circumstances the next.
Conclusion: A Final Thought for the Digital Neighborhood
The case of Paparazzo vs. Coronado Ranch Community Association offers a clear and compelling look at the collision between established community rules, the new realities of digital life, and the chaos of unforeseen global events. It shows that while bylaws and statutes provide a framework, their application can be shaped by emergencies, past events, and even a single user’s technical skills.
As our communities increasingly operate online, who bears the greater responsibility for ensuring effective communication—the organization hosting the meeting, or the individual attending it?
Case Participants
Petitioner Side
Samuel Paparazzo(petitioner) Also referred to as Samuel T Paparazzo
Respondent Side
Mark Stahl(HOA attorney) Coronado Ranch Community Association Also spelled Mark Sahl in source
Timothy Butterfield(HOA attorney) Coronado Ranch Community Association
Kevin Bishop(community manager) Coronado Ranch Community Association Appeared as a witness for Respondent; Also referred to as 'Agent Bishop' and chaired part of the annual meeting
Bob Hicks(HOA Board President) Coronado Ranch Community Association Delegated chairing of the annual meeting
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
ARIZ. REV. STAT. §§ 33-1804(A), 33-1804(B), 33-1804(F), and Association bylaws 2.3, 2.7, and 3.1
Outcome Summary
The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.
Why this result: The ALJ found that notice of the meeting modification (to an online platform due to COVID-19) was timely and proper, and Petitioner's claimed denial of the right to speak was the result of user error of the online platform, not action by the Association. Furthermore, the decision to hold elections for all five open Board positions was deemed appropriate due to carryover vacancies resulting from a lack of quorum in the prior year (2019).
Key Issues & Findings
Alleged violations regarding Annual Meeting notice (change in venue), right to speak, proper call to order, and staggered board voting.
Petitioner filed a quadruple-issue petition alleging the Association violated statutes and bylaws concerning the April 02, 2020, annual meeting, specifically regarding insufficient notice for the venue change (due to COVID-19), denial of the right to speak (via online chat), improper chair delegation, and failure to stagger Board elections.
Orders: Petitioner’s petition is denied.
Filing fee: $2,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 33-1804(F)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. ADMIN. CODE R4-9-117
Tierra Ranchos Homeowners Ass'n v. Kitchukov
Analytics Highlights
Topics: COVID-19, Virtual Meeting, Notice, Right to Speak, Elections, Bylaws, Quorum, User Error
Additional Citations:
ARIZ. REV. STAT. § 33-1804(A)
ARIZ. REV. STAT. § 33-1804(B)
ARIZ. REV. STAT. § 33-1804(F)
ARIZ. REV. STAT. § 32-2199.05
ARIZ. REV. STAT. § 32-2199.02
ARIZ. ADMIN. CODE R4-9-117
Audio Overview
Decision Documents
20F-H2020061-REL Decision – 819907.pdf
Uploaded 2026-01-23T17:33:45 (149.3 KB)
Briefing Doc – 20F-H2020061-REL
Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.
The critical takeaways from the decision are as follows:
• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.
• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.
• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.
• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.
Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.
I. Case Overview
This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.
• Case Number: 20F-H2020061-REL
• Presiding Judge: Administrative Law Judge Jenna Clark
• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)
• Respondent: Coronado Ranch Community Association (HOA)
• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.
II. Petitioner’s Allegations
On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:
1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.
2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).
3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.
4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.
III. Factual Chronology and Key Evidence
The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.
Feb. 20, 2020
The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.
Mar. 12, 2020
The Association mails election ballots to all Members.
Mar. 19, 2020
Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.
~Mar. 25, 2020
The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.
Mar. 25 – Apr. 1
The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.
Mar. 30, 2020
Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.
Apr. 1, 2020
Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.
Apr. 2, 2020
The Annual Meeting is held via ClickMeeting. • President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting. • A quorum is achieved based on attendees and absentee ballots. • An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting. • The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting. • At least 26 other Members successfully use the chat feature.
IV. Analysis of Key Issues and Legal Conclusions
The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.
A. Meeting Notice and Venue Change
• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).
• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.
• Supporting Evidence:
◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.
◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”
◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.
B. Right to Speak
• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).
• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.
• Supporting Evidence:
◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.
◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”
◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”
C. Conduct of Meeting
• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).
• Finding: The petition was denied on this point. The meeting was lawfully conducted.
• Supporting Evidence:
◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.
◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”
D. Board of Directors Election
• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).
• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”
• Supporting Evidence:
◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.
◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.
◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”
V. Final Order and Disposition
Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.
• Order: “IT IS ORDERED that Petitioner’s petition be denied.”
• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”
• Date of Order: The decision was issued on September 3, 2020.
Study Guide – 20F-H2020061-REL
Study Guide: Paparazzo v. Coronado Ranch Community Association
This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 20F-H2020061-REL, Samuel T Paparazzo v. Coronado Ranch Community Association.
Short-Answer Quiz
Answer the following questions in 2-3 sentences, based on the information provided in the case document.
1. Who were the primary parties in this case, and what were their roles?
2. What were the four specific allegations the Petitioner made against the Association regarding its Annual Meeting?
3. How did the Association notify its members of the change from an in-person meeting to a virtual one?
4. What was the legal justification for the Association’s decision to move the Annual Meeting to an online platform?
5. What evidence was presented to counter the Petitioner’s claim that he was “blocked” from using the online chat feature?
6. According to the Association’s bylaws, who has the authority to chair the annual meeting and delegate that responsibility?
7. Why did the 2020 Board of Directors election involve voting for all five open positions instead of being staggered?
8. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this hearing?
9. What two key Arizona Revised Statutes (ARIZ. REV. STAT.) relate to member meeting notices and the right to speak?
10. What was the final order issued by the Administrative Law Judge, and what was the core reasoning behind it?
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Answer Key
1. The primary parties were Samuel T. Paparazzo, the Petitioner, who is a property owner and member of the Association, and the Coronado Ranch Community Association, the Respondent, which is the homeowners’ association for the subdivision. The Petitioner brought the complaint, and the Respondent defended its actions.
2. The Petitioner alleged that: (i) inadequate notice of the “change in venue” was given; (ii) he was denied his right to speak by being blocked from the online chat feature; (iii) the meeting was not properly called to order; and (iv) the Board of Directors vote was not properly “staggered.”
3. The Association notified members of the move to the ClickMeeting platform by placing 12 signs at 6 common entrances, sending three separate emails to approximately 750 members, and placing 2 signs at the entrance of the originally scheduled location, Coronado Elementary School.
4. The legal justification was the need to comply with executive orders issued by Arizona Governor Douglas Ducey (2020-09, 2020-12, and 2020-18) to slow the spread of COVID-19. The online platform was adopted to allow homeowners to safely access the meeting while adhering to physical distancing mandates.
5. The evidence showed that the Petitioner wrote messages but never hit the “enter” key or “send” button to transmit them. Furthermore, the record indicates that no less than 26 other members successfully used the chat feature during the meeting.
6. According to Bylaw Section 2.7, the President of the Association, Bob Hicks, has the authority to call the meeting to order and chair it. The Petitioner conceded during cross-examination that President Hicks had the authority to delegate the chairing of the meeting to the Association’s Managing Agent, Kevin Bishop.
7. The election involved all five positions because a quorum had not been achieved at the Association’s 2019 annual meeting. This lack of a quorum prevented a vote from taking place, resulting in a carryover of all open board seats to the 2020 election.
8. A “preponderance of the evidence” is the standard of proof required, meaning the evidence must be more probably true than not. In this proceeding, the Petitioner, Samuel Paparazzo, bore the burden of proving his allegations by this standard.
9. ARIZ. REV. STAT. § 33-1804(B) requires notice to be sent not fewer than 10 nor more than 50 days in advance of a meeting. ARIZ. REV. STAT. § 33-1804(A) ensures that all meetings are open to members and that members are permitted to attend and speak at an appropriate time.
10. The final order was that the Petitioner’s petition be denied. The judge reasoned that the Petitioner failed to sustain his burden of proof, as the evidence showed the Association’s actions were lawful and appropriate responses to the circumstances, and the Petitioner’s inability to participate was due to user error.
——————————————————————————–
Essay Questions
The following questions are designed for deeper analysis of the case. No answers are provided.
1. Analyze the role of the COVID-19 pandemic and the associated executive orders in the events of this case. How did these external factors influence the Association’s actions and the Administrative Law Judge’s final decision?
2. The judge concluded that the Petitioner’s inability to use the chat function was due to “user error.” Discuss the evidence that supports this conclusion and explore the legal line between an association’s responsibility to provide access and a member’s responsibility to utilize the provided tools correctly.
3. Explain the relationship between the Association’s governing documents (CC&Rs and Bylaws) and Arizona state law (ARIZ. REV. STAT.). How did the judge use both to evaluate the legality of the Association’s handling of the annual meeting and election?
4. The Petitioner argued that the online platform constituted a “change in venue” that required more extensive notice. Based on the judge’s decision, evaluate the legal merits of this argument in the context of a virtual meeting necessitated by a public health crisis.
5. Discuss the concept of “quorum” as it applied to both the 2019 and 2020 annual meetings. How did the failure to achieve quorum in one year directly impact the procedures and outcome of the election in the following year?
——————————————————————————–
Glossary of Key Terms
Definition from Context
Administrative Law Judge (ALJ)
An independent judicial officer (Jenna Clark in this case) from the Office of Administrative Hearings who conducts evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.
ARIZ. REV. STAT.
Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona. Title 33, Chapter 16, Article 1 specifically regulates planned communities (homeowners’ associations).
Association
The Coronado Ranch Community Association, the homeowners’ association for the residential development in Gilbert, Arizona. It is governed by its CC&Rs and overseen by a Board of Directors.
Bylaws
The governing documents of the Association that detail the structure of day-to-day governance, including voting processes, quorum requirements, meeting provisions, and other operating guidelines.
Covenants, Conditions, and Restrictions. These form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use within the development.
Declarant Control Period
An initial period in an association’s history where the developer (the “Declarant”) controls the Board of Directors. In this case, this period ended for the Association in 2005.
Department
The Arizona Department of Real Estate, the state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.
The Office of Administrative Hearings, an independent state agency that was referred this matter to conduct an evidentiary hearing and decide the case.
Petitioner
Samuel T. Paparazzo, the property owner and Association member who filed the petition with the Department, alleging violations by the Association.
Preponderance of the Evidence
The burden of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of evidence.
Quorum
The minimum number of members required to be present or represented by ballot for a meeting to be valid and for votes to be taken. The failure to achieve quorum at the 2019 meeting resulted in a carryover of open board seats.
Respondent
The Coronado Ranch Community Association, the party against whom the petition was filed. The Respondent denied all allegations and was represented by legal counsel.
Blog Post – 20F-H2020061-REL
He Sued His HOA Over a Virtual Meeting—The Judge’s Ruling Contains 4 Critical Lessons for Every Homeowner
Introduction: The New Battlefield for Neighborhood Disputes
Cast your mind back to the chaotic spring of 2020. The world was locking down, businesses were scrambling to go remote, and the delicate social contracts of our neighborhoods were fraying. For millions living in Homeowners’ Associations, this meant the abrupt cancellation of in-person meetings, replaced by a frantic pivot to unfamiliar virtual platforms. In this pressure cooker of uncertainty and technical glitches, minor grievances quickly escalated into major legal battles.
The case of Paparazzo vs. Coronado Ranch Community Association is a quintessential legal drama of that era. A frustrated homeowner, believing he was silenced and his rights ignored during a virtual meeting, took his HOA to court. The judge’s decision, however, serves as a powerful cautionary tale. It distills four surprising and impactful lessons that every homeowner should understand as community governance becomes increasingly digital.
1. The Takeaway: You Can’t Claim You Were Silenced If You Forgot to Hit ‘Send’
The petitioner, Samuel Paparazzo, leveled a serious charge: that the HOA had denied his right to speak by “blocking” him from using the online chat feature during the annual meeting. In his view, this was an intentional act of suppression.
The digital evidence, however, told a very different story. While Mr. Paparazzo had typed several messages, he had never actually transmitted them by hitting the “enter” key or clicking the “send” button. While he did email for assistance during the meeting without receiving a timely response, the court found the chat feature was fully functional, proven by the fact that at least 26 other members used it successfully. The judge’s ruling was a stark lesson in digital accountability:
Petitioner’s inability to effectively communicate with the Association during the annual meeting was the result of user error. … The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.
This establishes a critical precedent for our digital age. The analysis here goes beyond simple “user error.” It suggests that a baseline of digital literacy is becoming a prerequisite for effective civic participation. Courts may have little sympathy for claims of disenfranchisement that stem from a failure to master the basic tools of modern communication.
2. The Takeaway: An Emergency Can Justify Last-Minute Changes
Next, the petitioner challenged the HOA on procedural grounds—a classic move in community disputes. He argued that the association failed to provide proper notice for the virtual meeting. The HOA had correctly noticed its in-person meeting for April 2, 2020, back on February 20. But by late March, holding that meeting had become impossible.
The judge’s response to this claim is a masterclass in how legal “reasonableness” can override rigid bylaws during a crisis. The court noted the rapidly evolving timeline of the pandemic: Governor Ducey issued executive orders limiting business operations on March 19, prohibiting the closure of essential services on March 23, and issuing the “Stay Home” order on March 30. Faced with these superseding government mandates, the HOA moved the meeting online on March 25.
Crucially, the HOA’s communication efforts were extensive and documented. They didn’t just send a single email. The board notified its members by:
• Placing 12 signs at 6 common entrances to the community.
• Sending three separate email blasts to approximately 750 members, which had an average open rate of 63.53%.
• Placing 2 additional signs at the entrance to the originally scheduled location, Coronado Elementary School.
The judge concluded that the HOA’s actions were a justifiable response to an unprecedented emergency. This wasn’t a board ignoring its rules; it was a board taking necessary steps to comply with government orders and protect its members, legally justifying the short-notice change in format.
3. The Takeaway: Just Showing Up Can Waive Your Right to Complain
This lesson hinges on a legal concept every homeowner must understand: waiver by attendance. Buried in the association’s bylaws was Section 2.3, which states: “A Member’s attendance at a meeting waives objection to the lack of notice or defective notice of the meeting.”
This is not mere legalese; it’s a common and powerful clause designed to ensure the finality of meetings. It prevents a member from strategically attending a meeting, remaining silent about a potential procedural flaw, and then launching a lawsuit later if they don’t like the outcome. The judge noted that the petitioner attended the virtual meeting but did not object to the notice “prior to or during” the event. By participating without raising a formal objection at the time, he legally accepted the meeting’s procedures and waived his right to challenge them later.
4. The Takeaway: The Past Can Haunt the Present
The petitioner’s final major complaint appeared to be a slam dunk: the election for the Board of Directors was not “staggered” as explicitly required by Bylaws Section 3.1. Instead of a mix of one- and two-year terms to ensure continuity, all five open board positions were elected at once. On its face, this was a clear violation.
But the reason for this anomaly demonstrates the domino effect of governance. The judge found that in the previous year, 2019, the association had failed to achieve a quorum for its annual meeting. Because there was no quorum, no vote could occur, creating a “carryover of open seats.” This failure in 2019 created a governance debt that had to be paid in 2020. The only lawful way to do so was to elect members to all five vacant positions. This shows that an HOA is a continuous legal entity; one year’s procedural failure doesn’t just disappear—it creates unusual but legally necessary circumstances the next.
Conclusion: A Final Thought for the Digital Neighborhood
The case of Paparazzo vs. Coronado Ranch Community Association offers a clear and compelling look at the collision between established community rules, the new realities of digital life, and the chaos of unforeseen global events. It shows that while bylaws and statutes provide a framework, their application can be shaped by emergencies, past events, and even a single user’s technical skills.
As our communities increasingly operate online, who bears the greater responsibility for ensuring effective communication—the organization hosting the meeting, or the individual attending it?
Case Participants
Petitioner Side
Samuel Paparazzo(petitioner) Also referred to as Samuel T Paparazzo
Respondent Side
Mark Stahl(HOA attorney) Coronado Ranch Community Association Also spelled Mark Sahl in source
Timothy Butterfield(HOA attorney) Coronado Ranch Community Association
Kevin Bishop(community manager) Coronado Ranch Community Association Appeared as a witness for Respondent; Also referred to as 'Agent Bishop' and chaired part of the annual meeting
Bob Hicks(HOA Board President) Coronado Ranch Community Association Delegated chairing of the annual meeting
Neutral Parties
Jenna Clark(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
The Administrative Law Judge ruled that Solera was in compliance with its governing documents, specifically CC&R Article 7, Section 7.1, concluding that the Board is the 'sole judge' regarding appropriate maintenance of AREAS. The Petitioner failed to meet the burden of proof, and the Rehearing Petition was dismissed.
Why this result: Petitioner failed to sustain her burden to establish a violation. The governing documents grant the Board 'the sole judge' authority over maintenance, and Petitioner did not provide legal support requiring the HOA to meet the homeowner maintenance standard.
Key Issues & Findings
Failure to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times
Petitioner alleged that Solera failed to maintain Areas of Association Responsibility (AREAS) in good condition and repair at all times, arguing that the same strict maintenance standard applied to homeowners (CC&R 7.2) should apply to the HOA (CC&R 7.1). The issue was heard on rehearing after the initial decision dismissed the petition.
Orders: The Administrative Law Judge concluded Solera was in compliance with its governing documents and was the prevailing party. Petitioner's appeal (Rehearing Petition) was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Analytics Highlights
Topics: HOA Dispute, CC&R Violation, Maintenance Standard, Areas of Association Responsibility, Rehearing, Sole Judge
Additional Citations:
A.R.S. 33-1801 et seq.
A.R.S. §§ 32-2102
A.R.S. §§ 32-2199 et al.
A.R.S. § 32-2199.05
A.R.S. §§ 32-2199(2)
A.R.S. § 32-2199.01(D)
A.R.S. § 32-2199.02
A.R.S. § 41-1092
CC&R Article 7, Section 7.1
CC&R Article 7, Section 7.2
CC&R Article 9, Section 9.5
ARIZ. ADMIN. CODE R2-19-119
ARIZ. ADMIN. CODE R2-19-116
Video Overview
Audio Overview
Decision Documents
20F-H2020051-REL Decision – 816310.pdf
Uploaded 2025-12-09T10:05:44 (199.6 KB)
20F-H2020051-REL Decision – 847175.pdf
Uploaded 2025-10-09T03:35:07 (246.5 KB)
Briefing Doc – 20F-H2020051-REL
Briefing Document: Morin v. Solera Chandler Homeowners’ Association
Executive Summary
This document synthesizes the findings from the Administrative Law Judge Rehearing Decision in the case of Debra K. Morin versus the Solera Chandler Homeowners’ Association, Inc. (Solera), dated January 8, 2021. The central dispute involved a homeowner’s allegation that the association failed to maintain its common areas in good condition and repair.
The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case, finding conclusively in favor of the Solera HOA. The decision rested on a critical provision within the association’s Declaration of Covenants, Conditions, and Restrictions (CC&Rs), which designates the Solera Board as the “sole judge as to the appropriate maintenance, repair and replacement” of all common areas. This clause grants the Board exclusive discretion, superseding an individual homeowner’s opinion on the timing or quality of maintenance.
Despite the petitioner presenting extensive photographic evidence documenting various maintenance issues, the ALJ concluded that this evidence failed to prove a violation of the governing documents. The petitioner did not meet her burden of proving by a preponderance of the evidence that the Board had acted outside its granted authority. The ruling affirms that the authority of the Board is explicitly elevated above that of an individual homeowner in matters of common area maintenance under the controlling legal documents.
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I. Case Background and Procedural History
The case originates from a petition filed by Debra K. Morin, a four-year resident of the Solera community, against the Solera Chandler Homeowners’ Association. The matter was adjudicated by the Arizona Office of Administrative Hearings (Tribunal).
A. Initial Petition
On March 12, 2020, Ms. Morin filed a two-issue petition with the Arizona Department of Real Estate, alleging that Solera, its Board of Directors, and its management company (Premier) had violated numerous governing documents, including the Articles of Incorporation, By-Laws, CC&Rs, and Rules & Regulations (R&Rs).
• Issue #1: Alleged that Solera did not permit “direct communication from homeowners” and sought to have this “policy” rescinded.
• Issue #2: Alleged that Solera was not providing oversight to the General Manager in maintaining the “Areas of Association Responsibility” (AREAS) in “good condition and repair at all times.” Specific complaints included uncontrolled weeds and poor maintenance of the Community Center and other common areas.
B. Procedural Developments
• Motion to Dismiss: Solera filed a Motion to Dismiss, arguing the issues were outside the Department of Real Estate’s jurisdiction.
• Withdrawal of Issue #1: At a May 20, 2020 hearing, the Tribunal noted its jurisdiction did not extend to non-governing documents like the Board’s Code of Ethics. Consequently, Ms. Morin withdrew Issue #1. The Tribunal denied the Motion to Dismiss for the remaining “bare-bones” maintenance allegation in Issue #2.
• Initial Decision (August 19, 2020): Following the original hearing, the ALJ issued a decision concluding that Solera was the “sole judge” regarding maintenance of the AREAS and had not violated its governing documents. The petition was dismissed.
• Rehearing Request (September 24, 2020): Ms. Morin filed a request for rehearing, citing irregularities in the proceedings, misconduct by the prevailing party, and arguing the decision was arbitrary and capricious, particularly in its interpretation of CC&R Article 7, Section 7.1.
• Rehearing Granted and Conducted: The Commissioner of the Arizona Department of Real Estate granted the rehearing, which was conducted telephonically on December 16, 2020.
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II. Core Arguments of the Parties
The fundamental conflict centered on the interpretation of the maintenance standards outlined in the community’s CC&Rs.
A. Petitioner’s Position (Debra K. Morin)
Ms. Morin’s case was built on the principle of equal application of maintenance standards.
• Central Argument: The same maintenance standard requiring homeowners to keep their lots “in good condition and repair at all times” (per CC&R Article 7, Section 7.2) must be applied equally to Solera’s responsibility for the common AREAS (per CC&R Article 7, Section 7.1).
• Core Belief: Because homeowners are given no discretion regarding delays in maintenance, Solera should not be able to take months to address reported issues.
• Evidence Presented: The petitioner submitted extensive documentation, including over 80 photographs (referenced in the rehearing as “310 pictures”), emails, and other documents. This evidence was intended to show persistent maintenance failures, including:
◦ Uncontrolled weeds in granite rock locations
◦ Poor exterior condition of the Community Center
◦ Deficiencies in street asphalt, storm drains, sidewalks, and curbing
◦ Water pooling and intrusion issues
◦ Exposed landscaping lights and irrigation lines
◦ Unremoved tree stumps
B. Respondent’s Position (Solera HOA)
Solera’s defense relied entirely on the specific authority granted to its Board by the governing documents.
• Central Argument: The association met its responsibilities, and the petitioner’s subjective opinions about what, when, or how maintenance should be done are irrelevant.
• Dispositive Legal Provision: Solera consistently cited CC&R Article 7, Section 7.1, which states the Board “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].”
• Interpretation: This provision grants the Board exclusive discretion and authority to determine the nature and timing of maintenance, insulating its decisions from a single homeowner’s critique.
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III. Analysis and Key Findings of the Administrative Law Judge
The Rehearing Decision provided a thorough review of the evidence and legal arguments, ultimately reinforcing the original ruling in favor of Solera.
A. The “Sole Judge” Clause and Board Authority
The ALJ’s conclusion hinged on the unambiguous language of the CC&Rs, which establishes a clear hierarchy of authority.
• CC&R Article 7, Section 7.1: This article was identified as the dispositive text. It states, in pertinent part: “the Board ‘shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS], but all [AREAS], and the Improvements located thereon, shall be maintained in good condition and repair at all times.'” The ALJ found that the “sole judge” provision grants the Board exclusive authority to determine how the “good condition and repair” standard is met.
• CC&R Article 9, Section 9.5: This section further strengthens the Board’s position by granting Solera the “exclusive right to construe and interpret the provisions of the [CC&Rs],” with its interpretation being “final, conclusive and binding.”
• Conclusion on Authority: The ALJ concluded that these provisions clearly lift the Board’s authority above that of an individual homeowner in determining appropriate maintenance.
B. Rejection of the “Equal Standard” Argument
The petitioner’s primary argument for an equal, non-discretionary standard for both the HOA and homeowners was explicitly rejected.
• The ALJ found that the petitioner “failed to provide legal support for her argument that the same maintenance standard is required to be applied to the Board as it is applied to a homeowner.”
• The governing documents themselves create different levels of authority and obligation for the Board versus individual owners.
C. Evaluation of Evidence and Burden of Proof
• Burden of Proof: The decision reiterates that the petitioner bears the burden of proving a violation by a “preponderance of the evidence.”
• Photographic Evidence: The ALJ acknowledged reviewing all photographs from both hearings. The decision states that this evidence successfully documented “the existence, at those dates embedded in the photographs, of items that deal with maintenance and repairs in various locations of Solera AREAS.”
• Failure to Prove a Violation: Crucially, while the photos proved maintenance issues existed, they did not prove a violation of the CC&Rs. Because the Board is the “sole judge,” the existence of a weed or a cracked curb does not automatically constitute a breach of its duties, as the Board retains discretion over the timeline and method of repair.
D. Jurisdictional Limitations
The decision affirmed the Tribunal’s limited jurisdiction, noting that many of the petitioner’s underlying frustrations were not legally actionable in this venue.
• Not Actionable: A homeowner’s dissatisfaction with the Board, its management company, or the General Manager is “not within the purview of this process or the jurisdiction of the Tribunal.”
• Irrelevant Documents: Arguments based on City of Chandler standards, the landscaping contract with Integrated Landscape Management (ILM), or Premier’s General Manager job description were deemed irrelevant, as the Tribunal’s review is limited to the association’s governing documents and applicable state statutes.
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IV. Final Order and Conclusion
Based on an exhaustive review of the record from both the original hearing and the rehearing, the Administrative Law Judge reached a definitive conclusion.
• Final Finding: The petitioner failed to sustain her burden of proof to establish a violation by Solera of the governing documents. The ALJ concluded that Solera is in compliance with its governing documents, including CC&R Article 7, Section 7.1.
• Order:
◦ IT IS ORDERED that Solera is the prevailing party with regard to the Rehearing, and Petitioner’s appeal is dismissed.
◦ The order was issued on January 8, 2021.
◦ As a decision issued after a rehearing, the order is binding on the parties. Any further appeal must be filed with the Superior Court within 35 days from the date of service.
Study Guide – 20F-H2020051-REL
Study Guide: Morin v. Solera Chandler Homeowners’ Association, Inc.
This guide provides a comprehensive review of the administrative rehearing case No. 20F-H2020051-REL-RHG, between Petitioner Debra K. Morin and Respondent Solera Chandler Homeowners’ Association, Inc. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms derived from the case documents.
Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the information provided in the case decision.
1. Who were the primary parties in this case, and who represented them at the telephonic hearing on December 16, 2020?
2. What were the two initial issues Petitioner Debra K. Morin raised in her petition filed on March 12, 2020?
3. Why did the Petitioner withdraw Issue #1 from her petition during the May 20, 2020 hearing?
4. What was the Petitioner’s central argument regarding the maintenance standard that Solera should be held to?
5. What type of evidence did the Petitioner primarily present to document the alleged maintenance failures in the Areas of Association Responsibility (AREAS)?
6. What specific clause in the CC&Rs did Solera (the Respondent) rely on to defend its actions and decisions regarding maintenance?
7. What were the primary reasons the Commissioner of the Arizona Department of Real Estate granted the Petitioner’s request for a rehearing?
8. How did the Administrative Law Judge rule on the relevance of non-governing documents, such as the City of Chandler ordinances and the Premier Management Company job description?
9. What is the legal standard of proof that a petitioner must meet in these proceedings, and how is it defined in the decision?
10. What was the final conclusion and order of the Administrative Law Judge in the Rehearing Decision issued on January 8, 2021?
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Answer Key
1. The primary parties were the Petitioner, Debra K. Morin, who represented herself, and the Respondent, Solera Chandler Homeowners’ Association (Solera). Solera was represented by Lydia Linsmeier, Esq.
2. Issue #1 alleged that Solera did not allow direct communication from homeowners. Issue #2 alleged that Solera, its Board, and its management company were not providing proper oversight to maintain the Areas of Association Responsibility (AREAS) in good condition and repair.
3. The Petitioner withdrew Issue #1 after the Tribunal ruled that the statutory parameters of its jurisdiction did not include the interpretation or application of a non-governing document like the Board’s Code of Ethics. The allegations regarding ethics and mismanagement based on this code were therefore removed from consideration.
4. The Petitioner’s central argument was that the same maintenance standard must be applied to Solera as is applied to homeowners. She contended that just as homeowners are required by CC&R Article 7, Section 7.2 to maintain their lots in good condition at all times, Solera must be held to the same standard for common AREAS under CC&R Article 7, Section 7.1.
5. The Petitioner presented an “enormity” of photographic evidence to document the maintenance issues. The decision notes she presented over eighty photographs at the original hearing and an additional “310 pictures” were mentioned in the rehearing, showing weeds, debris, exposed wiring, and other issues at various dates.
6. Solera relied on CC&R Article 7, Section 7.1, which states that the Solera Board of Directors “shall be the sole judge as to the appropriate maintenance, repair and replacement of all [AREAS].” Solera argued that the Petitioner’s subjective opinions on maintenance were therefore not relevant.
7. The rehearing was granted for reasons outlined in the Petitioner’s request, which claimed: irregularities in the proceedings, misconduct by the prevailing party, and that the original decision was arbitrary, capricious, an abuse of discretion, not supported by evidence, or contrary to law.
8. The Judge ruled that such documents were not relevant or justiciable. City standards were not under review, and the management company’s job description and landscape contract were not Solera governing documents, so they could not be used to prove a violation of the association’s governing documents.
9. The petitioner bears the burden of proving their case by a “preponderance of the evidence.” This is defined as proof that convinces the trier of fact that the contention is more probably true than not, and it represents the greater weight of evidence.
10. The Administrative Law Judge concluded that the Petitioner failed to sustain her burden to establish a violation by Solera of the governing documents. The Judge found Solera to be the prevailing party, in compliance with CC&R Article 7, Section 7.1, and ordered that the Petitioner’s appeal be dismissed.
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Suggested Essay Questions
The following questions are designed to encourage deeper analysis of the case. No answers are provided.
1. Analyze the balance of power between a homeowner and an HOA as depicted in this case. Discuss how specific clauses in the CC&Rs, particularly Article 7 (Section 7.1) and Article 9 (Sections 9.5 and 9.9), grant authority to the Board and limit the recourse available to an individual owner within the association’s own framework.
2. Examine the role and limitations of evidence in this administrative hearing. Why was the Petitioner’s photographic evidence, despite its volume, ultimately insufficient to meet the burden of proof? Discuss the distinction made by the Tribunal between evidence of a maintenance issue and evidence of a violation of the governing documents.
3. The Petitioner argued for an equal application of the “maintenance standard” to both homeowners and the HOA, stating “[t]here must be equal consideration to have a valid contract.” Evaluate this argument in the context of the specific language found in the Solera CC&Rs. Is the concept of “equal consideration” legally applicable in the way the Petitioner suggests?
4. Discuss the jurisdiction of the Arizona Office of Administrative Hearings (the Tribunal) in HOA disputes as described in the decision. Explain why the Tribunal could rule on the maintenance of common areas but had to dismiss claims related to the Solera Code of Ethics, City of Chandler ordinances, and Premier Management’s internal documents.
5. Based on the findings of fact, trace the procedural journey of this case from the initial petition to the final rehearing order. Identify the key turning points, such as the Motion to Dismiss and the Order Granting Rehearing, and explain their impact on the scope and outcome of the dispute.
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Glossary of Key Terms
Definition from Source Context
Administrative Law Judge (ALJ)
The judicial authority, in this case Kay Abramsohn, who presides over hearings at the Office of Administrative Hearings, makes findings of fact, issues decisions, and conducts rehearings.
Areas of Association Responsibility (AREAS)
The common areas within the Solera community that the homeowners’ association is responsible for managing and maintaining. This includes landscaping, the Community Center exterior, street conditions, storm drains, sidewalks, walls, and curbing.
Articles of Incorporation
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit A.
By-Laws
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit B.
CC&Rs (Declaration of Covenants, Conditions, and Restrictions)
A primary governing document for the Solera at Springfield Lakes community. It outlines the rights and responsibilities of both the homeowners and the association.
Maintenance Standard
Defined in CC&R Article 1, Section 1.30 as “the standard of maintenance of Improvements established from time to time by the Board and/or the Architectural Review Committee in the Design Guidelines, or in the absence of any such standards, the standards of maintenance of Improvements generally prevailing through the Project.”
Motion to Dismiss
A formal request filed by a party (in this case, Solera) asking for a petition or case to be dismissed on the grounds that the issues are outside the Department’s jurisdiction or that the requested relief cannot be granted as a matter of law.
Petitioner
The party who initiates a legal action or petition. In this case, Debra K. Morin, a homeowner in the Solera community.
Preponderance of the Evidence
The standard of proof required for a petitioner to win in these proceedings. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Premier Management Company (Premier)
The management company hired by the Solera Board of Directors to handle duties including the oversight of a General Manager.
Project Documents
Defined in CC&R Article 1, Section 1.37 as the CC&Rs, any supplements to the CC&Rs, the By-Laws, the Rules and Regulations (R&Rs), and the Design Guidelines.
Respondent
The party against whom a petition is filed. In this case, the Solera Chandler Homeowners’ Association, Inc.
R&Rs (Rules and Regulations)
One of the governing documents of the Solera Chandler Homeowners’ Association, referenced as Solera Exhibit D.
Tribunal
A term used to refer to the Arizona Office of Administrative Hearings (OAH), the body responsible for conducting administrative hearings for disputes referred by the Arizona Department of Real Estate.
Blog Post – 20F-H2020051-REL
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20F-H2020051-REL-RHG
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This document presents an Administrative Law Judge Rehearing Decision regarding a dispute between Debra K. Morin (Petitioner) and the Solera Chandler Homeowners’ Association, Inc. (Respondent). The Petitioner initially filed a two-issue complaint with the Arizona Department of Real Estate alleging that the HOA had violated various governing documents, primarily concerning lack of direct homeowner communication and a failure to maintain Association Responsibility Areas (AREAS) in good condition. After the first issue was withdrawn due to jurisdictional limitations, the initial decision dismissed the petition, finding the HOA was the sole judge of appropriate maintenance under the Covenants, Conditions, and Restrictions (CC&Rs). This rehearing decision, granted due to claims of procedural irregularities and arbitrary findings, ultimately reaffirms the original dismissal, concluding that the Petitioner failed to meet the burden of proof to establish a violation of the governing documents.
Case Participants
Petitioner Side
Debra K. Morin(petitioner) Represented herself
Respondent Side
Lydia A. Perce Linsmeier(HOA attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Solera Chandler Homeowners' Association
Denise Frazier(general manager/witness) Premier Management Company / Solera Chandler Homeowners' Association Solera's onsite general manager who testified
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge for both original and rehearing decisions
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative) Transmitted the original August 19, 2020 Decision
