Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1818053-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-01-31
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Travis Prall
Counsel
—
Respondent
Villas at Tierra Buena HOA
Counsel
Lydia Pierce Linsmeier
Alleged Violations
CC&R Section 7.1.4
Outcome Summary
The Administrative Law Judge dismissed the petition following a rehearing, finding the homeowner failed to meet the burden of proof to show the HOA violated the CC&Rs (Section 7.1.4) by neglecting yard maintenance, specifically because the homeowner did not provide credible evidence that the landscaping at issue was 'originally installed by Declarant'.
Why this result: Petitioner failed to present credible evidence that the landscaping/tree in question was 'originally installed by Declarant', which was necessary to trigger the Respondent's maintenance obligation under CC&R Section 7.1.4.
Key Issues & Findings
The Petitioner alleges that the Villas at Tierra Buena Homeowner’s Association (Respondent) violated the Association’s CC&R’s Article 7.1 by neglecting yard maintenance in visible public yards.
Petitioner asserted the HOA was responsible for the maintenance and replacement of landscaping, specifically a tree, in his back yard under CC&R Section 7.1.4, claiming it was a Public Yard and the tree was originally installed by the Declarant. The HOA denied responsibility.
Orders: The Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 41-2198.01
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
Analytics Highlights
Topics: HOA maintenance responsibility, CC&R interpretation, burden of proof, originally installed by declarant, public yard vs private yard, rehearing
This briefing synthesizes the findings from two administrative law hearings concerning a dispute between homeowner Travis Prall (Petitioner) and the Villas at Tierra Buena Homeowners Association (Respondent). The core of the conflict was the Petitioner’s allegation that the HOA violated its governing documents by failing to maintain landscaping—specifically a large tree—in his backyard, which he contended was a “Public Yard” under the community’s Covenants, Conditions, and Restrictions (CC&Rs).
The dispute culminated in two separate rulings by an Administrative Law Judge (ALJ), one in September 2018 and another following a rehearing in January 2019. In both instances, the petition was dismissed.
The central issue did not turn on the ambiguous definition of “Public Yard” vs. “Private Yard” in the CC&Rs, a point of significant debate between the parties. Instead, the case was decided on a critical qualifying phrase in the governing documents: the HOA’s maintenance obligation under Section 7.1.4 is limited to landscaping “as originally installed by Declarant” (the original developer).
The Petitioner failed to meet the burden of proof to establish that the tree in question was installed by the developer. In the initial hearing, this conclusion was based on inference. In the rehearing, the HOA presented credible witness testimony from a board member involved in the community’s initial sales, who stated that all homes were sold with no landscaping or irrigation in the backyards, which were “just dirt.” The ALJ found this to be the only credible evidence on the matter, leading to the final dismissal of the case.
Case Overview
Case Name
Travis Prall (Petitioner) vs. Villas at Tierra Buena HOA (Respondent)
Case Number
18F-H1818053-REL
Office of Administrative Hearings, Phoenix, Arizona
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Core Allegation
The Petitioner alleged the HOA violated Section 7.1.4 of the CC&Rs by “neglecting yard maintenance in visible public yards.”
Factual Background and Timeline
The dispute is centered within the Villas at Tierra Buena, a gated community comprising 43 homes on the outer perimeter with tall block fences and 19 interior homes with four-foot-tall walls (two feet of block with a two-foot aluminum fence on top). The Petitioner owns one of these interior homes.
• 2010: Travis Prall purchases his home. He believes, based on his reading of the CC&Rs, that the HOA is responsible for maintaining both his front and back yards. A large tree is present in the backyard at the time of purchase.
• 2010–2013: Prall testifies that the HOA provided landscaping maintenance to his front and back yards during this period. The HOA denies ever providing maintenance to any backyards in the community.
• July 26, 2014: A storm knocks over the tree in Prall’s backyard. Prall pays for its removal but asserts at the time that it was the HOA’s responsibility.
• Post-2014: The tree regrows from the remaining stump.
• 2018: The HOA observes that the “pony wall” near the regrown tree is buckling. A repair company, Sun King Fencing & Gates, confirms “the reason the pony wall buckled was the tree roots in the area” and recommends the tree’s removal.
• May 3, 2018: The HOA issues a “Courtesy Letter” to Prall, stating, “Please trim or remove the tree in the back yard causing damage to the pony wall.”
• June 4, 2018: Prall files an HOA Dispute Process Petition with the Arizona Department of Real Estate.
• September 4, 2018: The initial administrative hearing is held.
• September 24, 2018: The ALJ issues a decision dismissing the petition.
• Post-September 2018: Prall’s request for a rehearing is granted.
• January 11, 2019: The rehearing is conducted.
• January 31, 2019: The ALJ issues a final decision, again dismissing the petition.
Central Point of Contention: Interpretation of CC&Rs
The primary disagreement focused on whether the Petitioner’s enclosed but visible backyard constituted a “Public Yard” or a “Private Yard” under the CC&Rs. The HOA’s maintenance obligation under Section 7.1.4 applies only to Public Yards.
Relevant CC&R Sections
Section
Language
Respondent must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…” (Emphasis added)
“‘Private Yard’ means that portion of a Yard which is enclosed or shielded from view by walls, fences, hedges or the like so that it is not generally Visible from Neighboring Property. ‘Public Yard’ means that portion of a Yard which is generally visible from Neighboring Property, whether or not it is located in front of, beside, or behind the Residential Dwelling.”
“‘Visible from Neighboring Property’ means, with respect to any given object, that such object is or would be visible to a person six feet tall standing on any part of such neighboring property…”
Competing Interpretations
• Petitioner’s Interpretation: A yard is “Private” only if it is both enclosed/shielded AND not generally visible. Because his backyard is enclosed but visible through the four-foot wall/fence, he argued it qualifies as a “Public Yard” that the HOA must maintain.
• Respondent’s Interpretation: A yard is “Private” if it is either enclosed or shielded from view. Because the Petitioner’s backyard is enclosed, it is a Private Yard, and the HOA has no maintenance responsibility.
While the ALJ acknowledged that “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards,” she explicitly stated that the tribunal was “not required to reach that issue in this matter.” The case was decided on other grounds.
Analysis of Arguments and Evidence
The Petitioner bore the burden of proof to establish a violation by a preponderance of the evidence.
Petitioner’s Position (Travis Prall)
• Argued that the HOA performed backyard maintenance from 2010 to 2013, establishing a precedent.
• Posited that the large size of the tree when he bought the home in 2010 indicated it must have been planted by the original developer.
• Suggested that the presence of just two types of irrigation systems across the community, accessible from the front, implied a uniform developer installation for both front and back yards.
• Noted that his backyard sprinkler system wrapped around the tree, suggesting they were installed together by the developer.
Respondent’s Position (Villas at Tierra Buena HOA)
• Denied ever providing landscaping maintenance to any backyards, stating it only controls front yard irrigation and sprinkler systems.
• Raised liability concerns about maintenance workers entering residents’ enclosed backyards where pets could escape.
• Presented critical testimony from Board President Maureen Karpinski during the rehearing. Ms. Karpinski, a real estate agent who was involved with the community’s development and sales from 2002, stated that to her knowledge, none of the homes were sold with any landscaping or irrigation in the backyards, which were “just dirt.”
Administrative Law Judge’s Decisions and Rationale
The ALJ’s rulings in both hearings hinged on the specific requirement in Section 7.1.4 that the landscaping must have been “originally installed by Declarant.”
Initial Hearing Decision (September 24, 2018)
• Ruling: The Petition was dismissed.
• Rationale: The Petitioner failed to present evidence that the tree was installed by the developer. The ALJ noted that the tree had regrown to a significant height in approximately five years after being cut down in 2014. From this, she concluded that “it cannot be concluded that the tree in the photograph from 2010 was planted as part of the original landscape plan around 2000.”
Rehearing Decision (January 31, 2019)
• Ruling: The Petition was dismissed.
• Rationale: The ALJ found the Petitioner’s arguments to be “suppositions and inferences.” In contrast, she deemed the testimony of Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.” Ms. Karpinski’s statement that backyards were sold as “just dirt” directly refuted the claim that any landscaping was “originally installed by Declarant.”
• The final conclusion stated: “As there was no evidence there was any landscaping or improvements originally installed by Declarant, there is no reason to conclude Respondent would be required to replace and maintain Petitioner’s back yard under the terms of Section 7.1.4 of the CC&Rs.”
Final Disposition
The Administrative Law Judge ordered that the Petition be dismissed. The order resulting from the rehearing was final and binding on the parties. Any further appeal would require seeking judicial review in the superior court within 35 days of the order.
Study Guide – 18F-H1818053-REL-RHG
Study Guide: Prall v. Villas at Tierra Buena HOA
This study guide provides a comprehensive review of the administrative case between Travis Prall and the Villas at Tierra Buena Homeowners Association, based on the legal decisions from September 2018 and January 2019. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the dispute, arguments, and legal reasoning involved.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source context.
1. What specific violation of the community’s CC&Rs did the Petitioner, Travis Prall, allege in his petition?
2. What was the key physical difference between the backyards of the “interior homes” and the “exterior homes” in the Villas at Tierra Buena community?
3. What was the central point of disagreement between the Petitioner and the Respondent regarding the definition of a “Private Yard” versus a “Public Yard”?
4. According to Section 7.1.4 of the CC&Rs, what specific condition must be met for the HOA to be responsible for maintaining landscaping in a Public Yard?
5. What was the “Courtesy Letter” issued by the Respondent on May 3, 2018, and what did it request of the Petitioner?
6. What was the Petitioner’s primary argument for why the tree in his backyard must have been installed by the original developer?
7. What is the legal standard of proof the Petitioner was required to meet, and what does it mean?
8. In the first hearing, why did the Administrative Law Judge conclude that the tree was not part of the original landscape plan?
9. During the rehearing, what “credible evidence” was presented by the Respondent that refuted the Petitioner’s claims about original backyard landscaping?
10. Why did the Administrative Law Judge state that it was not necessary to rule on the interpretation of “Public Yard” vs. “Private Yard” in either decision?
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Answer Key
1. Petitioner Travis Prall alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). The specific allegation was that the HOA neglected its duty for yard maintenance in visible public yards.
2. The exterior homes have six to seven-foot-tall block wall fences enclosing the backyards. The interior homes, like the Petitioner’s, have a shorter back wall, consisting of a two-foot-tall block wall topped with a two-foot-tall aluminum fence, making the backyards more visible.
3. The Petitioner argued that a yard must be both enclosed and not generally visible to be private, meaning his visible, enclosed yard was public. The Respondent argued that a yard was private if it was enclosed or shielded from view, meaning the Petitioner’s enclosed yard was private regardless of visibility.
4. According to Section 7.1.4, the HOA is required to “replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots.” This means the landscaping in question must have been part of the original developer’s installation.
5. The “Courtesy Letter” was a notice from the HOA to the Petitioner concerning the tree in his backyard. It requested that he “Please trim or remove the tree in the back yard causing damage to the pony wall,” which had buckled due to the tree’s roots.
6. The Petitioner posited that the tree must have been installed by the developer due to its large size when he bought the home in 2010. He also noted that the backyard sprinkler system wrapped around the tree, suggesting they were installed together during original construction.
7. The Petitioner was required to meet the “preponderance of the evidence” standard. This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not; it is the greater weight of evidence.
8. The judge noted that after the original tree was removed in 2014, the present tree grew to a similar height in approximately five years from the remaining stump. Therefore, the judge concluded that the tree’s size in 2010 did not prove it was planted as part of the original landscape plan around the year 2000.
9. The Respondent presented the testimony of Maureen Karpinski, the Board President and a real estate agent who sold homes in the community during its development. She stated that to the best of her knowledge, none of the homes were sold with any landscaping or irrigation in the backyards and that they were “just dirt.”
10. The judge did not need to rule on the yard definition because the Petitioner first had to prove the tree was “originally installed by the Declarant” per Section 7.1.4. Since the Petitioner failed to provide sufficient evidence for this foundational claim in both hearings, the question of whether the yard was public or private became irrelevant to the outcome.
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Suggested Essay Questions
These questions are designed to test a deeper, more analytical understanding of the case. Answers are not provided.
1. Explain the concept of “burden of proof” and analyze how the Petitioner’s failure to meet the “preponderance of the evidence” standard was the determining factor in the dismissal of his petition in both the initial hearing and the rehearing.
2. Provide a detailed analysis of the competing interpretations of “Private Yard” and “Public Yard” as defined in Section 1.38 of the CC&Rs. Discuss the arguments made by both the Petitioner and the Respondent and explain why, despite this being a central point of contention, the final ruling did not hinge on this issue.
3. Compare the evidence presented by Travis Prall with the evidence presented by the Villas at Tierra Buena HOA. How did the nature and credibility of the evidence, particularly witness testimony versus suppositions, influence the Administrative Law Judge’s final decision?
4. Trace the procedural history of this case, starting from the initial event that triggered the HOA’s notice through the final decision after the rehearing. What were the key decision points and legal options available to the parties at each stage?
5. Discuss the significance of Maureen Karpinski’s testimony in the rehearing. How did her personal and professional experience with the community’s development directly address the central weakness of the Petitioner’s case from the first hearing?
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Glossary of Key Terms
Definition
Administrative Law Judge
The judicial officer who presides over hearings at the Office of Administrative Hearings and issues legal decisions, in this case, Tammy L. Eigenheer.
An abbreviation for the Declaration of Covenants, Conditions,Restrictions and Easements, the legal documents that govern a planned community or HOA.
Common Area
Land within the community for the common use and enjoyment of the owners; the HOA is responsible for maintaining landscaping in these areas.
Courtesy Letter
A formal notice issued by the HOA to a resident. In this case, it was a letter dated May 3, 2018, requesting that the Petitioner trim or remove a tree causing damage to a wall.
Declarant
The original developer who installed the initial landscaping and improvements in the community.
An abbreviation for Homeowners Association. In this case, the Villas at Tierra Buena HOA, which was the Respondent.
Petitioner
The party who files a petition initiating a legal action. In this case, homeowner Travis Prall.
Preponderance of the evidence
The standard of proof in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the “greater weight of the evidence.”
Private Yard
As defined in Section 1.38 of the CC&Rs, it is the portion of a Yard “which is enclosed or shielded from view by walls, fences, hedges or the like so that it is not generally Visible from Neighboring Property.” The interpretation of this definition was a key dispute in the case.
Public Yard
As defined in Section 1.38 of the CC&Rs, it is the portion of a Yard “which is generally visible from Neighboring Property, whether or not it is located in front of, beside, or behind the Residential Dwelling.”
Respondent
The party against whom a petition is filed. In this case, the Villas at Tierra Buena HOA.
Visible from Neighboring Property
A term defined in Section 1.37 of the CC&Rs. An object is considered visible if it can be seen by a six-foot-tall person standing on a neighboring property, with a specific exception for objects visible only through a wrought iron fence.
As defined in Section 1.38 of the CC&Rs, it is “the portion of the Lot devoted to Improvements other than the Residential Dwelling.”
Blog Post – 18F-H1818053-REL-RHG
He Fought His HOA Over a Single Tree—And Lost Because of a Clause Everyone Missed
For many homeowners, the relationship with their Homeowners Association is a delicate balance of rules, fees, and occasional frustrations. It’s a familiar story: a dispute arises over a seemingly minor issue, and suddenly you’re deep in the weeds of your community’s governing documents, convinced you’re in the right.
This was exactly the position of homeowner Travis Prall. He believed the rules for his community, the Villas at Tierra Buena HOA, clearly stated they were responsible for maintaining a troublesome tree in his backyard. Confident in his interpretation of the Covenants, Conditions, and Restrictions (CC&Rs), he took his case to an administrative law judge.
But the outcome of his legal battle hinged not on the clause he was arguing, but on details everyone had overlooked. The way he lost—first in an initial hearing, and then decisively in a rehearing he himself requested—reveals crucial lessons for any homeowner hidden within the dense language of community documents.
The Definition You Debate Isn’t Always the One That Matters
The core of Mr. Prall’s argument was a battle of definitions. According to the CC&Rs, the HOA was responsible for maintaining “Public Yards.” The rules defined a “Public Yard” as any part of a yard “which is generally visible from Neighboring Property.” Even though his backyard was enclosed by a four-foot wall, it was visible to his neighbors, so he argued it qualified.
The HOA countered with its own interpretation. They pointed to the definition of a “Private Yard,” which included any yard that is “enclosed.” Since his yard was enclosed, they claimed, it was his responsibility, regardless of visibility.
The two sides were locked in a debate over these competing definitions. But in the first hearing, the judge delivered a surprising twist: the entire debate was irrelevant. The judge acknowledged that Prall’s reading of the rules might even be plausible but declared that the tribunal was “not required to reach that issue.” Why? Because Prall had failed to clear an even more fundamental hurdle first. The judge found that Prall had “failed to present any evidence that the tree at issue was originally installed by the Declarant,” a fatal flaw that sidestepped his primary argument entirely.
“While the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes even if that is contrary to the intention of the drafters of the CC&Rs, the tribunal is not required to reach that issue in this matter.”
Prall had lost the first round not because his interpretation was wrong, but because he hadn’t proven his case on a different, more critical point.
It All Comes Down to “As Originally Installed”
Unsatisfied with the outcome, Prall requested and was granted a rehearing—a second chance to make his case. But this second chance also gave the HOA an opportunity to sharpen its defense, and it zeroed in on the exact clause that had decided the first hearing.
The case was ultimately decided by Section 7.1.4. This clause stated the HOA was only responsible for landscaping “as originally installed by Declarant”—a legal term for the original developer of the community.
This single phrase shifted the entire focus of the dispute. The question was no longer about “Public vs. Private” yards, but about the historical fact of what the developer had installed when the homes were first built around the year 2000.
At the rehearing, the HOA introduced the knockout blow: the testimony of Maureen Karpinski, an early resident and real estate agent who had sold homes in the community during its construction. She testified that to her knowledge, none of the homes were sold with any landscaping in the backyards. Her exact description was that the yards were “just dirt.”
The judge found this to be the “only credible evidence offered.” It completely undermined Prall’s case. If the developer never installed any landscaping in the backyards, there was no “original” landscaping for the HOA to maintain. Their responsibility under the governing documents was zero.
“Suppositions and Inferences” Aren’t Enough
In any formal dispute, the person making a claim has the “burden of proof.” Mr. Prall needed to prove his case by a “preponderance of the evidence,” a legal standard meaning it was more likely true than not.
He tried to meet this burden with logical arguments. He “posited that, given the size of the tree” in a 2010 photograph, it must have been planted when the home was built. He added that the “sprinkler system in his back yard wrapped around the tree as further evidence” that they were installed together by the developer.
But these deductions failed to convince the judge. In the final decision after the rehearing, these arguments were dismissed as the petitioner’s “suppositions and inferences.”
This stands in stark contrast to the HOA’s evidence. While Prall offered logical conclusions, the HOA offered direct testimony from someone who was there at the beginning. This case underscores a fundamental legal truth: personal belief and common-sense deductions are no substitute for verifiable facts and credible, first-hand testimony.
The Final Word is in the Fine Print
This homeowner’s fight over a single tree serves as a powerful cautionary tale. He built a logical case based on his interpretation of a key definition, only to lose because of a clause and a historical fact he hadn’t sufficiently proven.
The lessons are clear. Winning a dispute requires understanding every relevant clause in the governing documents, not just the one that seems most obvious. It requires acknowledging that the history of the community can be more powerful than a present-day interpretation of the rules. And most importantly, it requires presenting concrete proof, not just strong beliefs.
For any homeowner in an HOA, this story poses a crucial question: When was the last time you read your HOA’s documents from start to finish, and what hidden details might be waiting for you?
Case Participants
Petitioner Side
Travis Prall(petitioner)
Respondent Side
Maureen Karpinski(board member) President of the Board; witness
Frank Peake(property manager) Pride Community Management Witness; Owner of Pride Community Management
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1818053-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-01-31
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Travis Prall
Counsel
—
Respondent
Villas at Tierra Buena Homeowners Association
Counsel
Lydia Pierce Linsmeier
Alleged Violations
Section 7.1.4 of the CC&Rs
Outcome Summary
The Administrative Law Judge dismissed the Petition following a rehearing, concluding that the Petitioner failed to meet the burden of proof to show the HOA violated Section 7.1.4 of the CC&Rs because there was no credible evidence that the disputed landscaping (tree) had been originally installed by the developer.
Why this result: Petitioner failed to establish by a preponderance of the evidence that the landscaping was originally installed by the Declarant, which was a prerequisite for HOA maintenance responsibility under the relevant CC&R section.
Key Issues & Findings
Neglecting yard maintenance in visible public yards
Petitioner alleged the HOA violated CC&R Section 7.1.4 by failing to maintain a tree in his back yard, arguing the back yard qualified as a 'Public Yard' and the tree was originally installed by the Declarant.
Orders: The Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 41-2198.01
A.R.S. § 32-2199.02(B)
A.R.S. § 41-1092.08(H)
A.R.S. § 12-904(A)
Analytics Highlights
Topics: HOA maintenance, CC&R interpretation, burden of proof, landscaping
This briefing synthesizes the findings from two administrative law hearings concerning a dispute between homeowner Travis Prall (Petitioner) and the Villas at Tierra Buena Homeowners Association (Respondent). The core of the conflict was the Petitioner’s allegation that the HOA violated its governing documents by failing to maintain landscaping—specifically a large tree—in his backyard, which he contended was a “Public Yard” under the community’s Covenants, Conditions, and Restrictions (CC&Rs).
The dispute culminated in two separate rulings by an Administrative Law Judge (ALJ), one in September 2018 and another following a rehearing in January 2019. In both instances, the petition was dismissed.
The central issue did not turn on the ambiguous definition of “Public Yard” vs. “Private Yard” in the CC&Rs, a point of significant debate between the parties. Instead, the case was decided on a critical qualifying phrase in the governing documents: the HOA’s maintenance obligation under Section 7.1.4 is limited to landscaping “as originally installed by Declarant” (the original developer).
The Petitioner failed to meet the burden of proof to establish that the tree in question was installed by the developer. In the initial hearing, this conclusion was based on inference. In the rehearing, the HOA presented credible witness testimony from a board member involved in the community’s initial sales, who stated that all homes were sold with no landscaping or irrigation in the backyards, which were “just dirt.” The ALJ found this to be the only credible evidence on the matter, leading to the final dismissal of the case.
Case Overview
Case Name
Travis Prall (Petitioner) vs. Villas at Tierra Buena HOA (Respondent)
Case Number
18F-H1818053-REL
Office of Administrative Hearings, Phoenix, Arizona
Presiding Judge
Administrative Law Judge Tammy L. Eigenheer
Core Allegation
The Petitioner alleged the HOA violated Section 7.1.4 of the CC&Rs by “neglecting yard maintenance in visible public yards.”
Factual Background and Timeline
The dispute is centered within the Villas at Tierra Buena, a gated community comprising 43 homes on the outer perimeter with tall block fences and 19 interior homes with four-foot-tall walls (two feet of block with a two-foot aluminum fence on top). The Petitioner owns one of these interior homes.
• 2010: Travis Prall purchases his home. He believes, based on his reading of the CC&Rs, that the HOA is responsible for maintaining both his front and back yards. A large tree is present in the backyard at the time of purchase.
• 2010–2013: Prall testifies that the HOA provided landscaping maintenance to his front and back yards during this period. The HOA denies ever providing maintenance to any backyards in the community.
• July 26, 2014: A storm knocks over the tree in Prall’s backyard. Prall pays for its removal but asserts at the time that it was the HOA’s responsibility.
• Post-2014: The tree regrows from the remaining stump.
• 2018: The HOA observes that the “pony wall” near the regrown tree is buckling. A repair company, Sun King Fencing & Gates, confirms “the reason the pony wall buckled was the tree roots in the area” and recommends the tree’s removal.
• May 3, 2018: The HOA issues a “Courtesy Letter” to Prall, stating, “Please trim or remove the tree in the back yard causing damage to the pony wall.”
• June 4, 2018: Prall files an HOA Dispute Process Petition with the Arizona Department of Real Estate.
• September 4, 2018: The initial administrative hearing is held.
• September 24, 2018: The ALJ issues a decision dismissing the petition.
• Post-September 2018: Prall’s request for a rehearing is granted.
• January 11, 2019: The rehearing is conducted.
• January 31, 2019: The ALJ issues a final decision, again dismissing the petition.
Central Point of Contention: Interpretation of CC&Rs
The primary disagreement focused on whether the Petitioner’s enclosed but visible backyard constituted a “Public Yard” or a “Private Yard” under the CC&Rs. The HOA’s maintenance obligation under Section 7.1.4 applies only to Public Yards.
Relevant CC&R Sections
Section
Language
Respondent must “Replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots…” (Emphasis added)
“‘Private Yard’ means that portion of a Yard which is enclosed or shielded from view by walls, fences, hedges or the like so that it is not generally Visible from Neighboring Property. ‘Public Yard’ means that portion of a Yard which is generally visible from Neighboring Property, whether or not it is located in front of, beside, or behind the Residential Dwelling.”
“‘Visible from Neighboring Property’ means, with respect to any given object, that such object is or would be visible to a person six feet tall standing on any part of such neighboring property…”
Competing Interpretations
• Petitioner’s Interpretation: A yard is “Private” only if it is both enclosed/shielded AND not generally visible. Because his backyard is enclosed but visible through the four-foot wall/fence, he argued it qualifies as a “Public Yard” that the HOA must maintain.
• Respondent’s Interpretation: A yard is “Private” if it is either enclosed or shielded from view. Because the Petitioner’s backyard is enclosed, it is a Private Yard, and the HOA has no maintenance responsibility.
While the ALJ acknowledged that “the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards,” she explicitly stated that the tribunal was “not required to reach that issue in this matter.” The case was decided on other grounds.
Analysis of Arguments and Evidence
The Petitioner bore the burden of proof to establish a violation by a preponderance of the evidence.
Petitioner’s Position (Travis Prall)
• Argued that the HOA performed backyard maintenance from 2010 to 2013, establishing a precedent.
• Posited that the large size of the tree when he bought the home in 2010 indicated it must have been planted by the original developer.
• Suggested that the presence of just two types of irrigation systems across the community, accessible from the front, implied a uniform developer installation for both front and back yards.
• Noted that his backyard sprinkler system wrapped around the tree, suggesting they were installed together by the developer.
Respondent’s Position (Villas at Tierra Buena HOA)
• Denied ever providing landscaping maintenance to any backyards, stating it only controls front yard irrigation and sprinkler systems.
• Raised liability concerns about maintenance workers entering residents’ enclosed backyards where pets could escape.
• Presented critical testimony from Board President Maureen Karpinski during the rehearing. Ms. Karpinski, a real estate agent who was involved with the community’s development and sales from 2002, stated that to her knowledge, none of the homes were sold with any landscaping or irrigation in the backyards, which were “just dirt.”
Administrative Law Judge’s Decisions and Rationale
The ALJ’s rulings in both hearings hinged on the specific requirement in Section 7.1.4 that the landscaping must have been “originally installed by Declarant.”
Initial Hearing Decision (September 24, 2018)
• Ruling: The Petition was dismissed.
• Rationale: The Petitioner failed to present evidence that the tree was installed by the developer. The ALJ noted that the tree had regrown to a significant height in approximately five years after being cut down in 2014. From this, she concluded that “it cannot be concluded that the tree in the photograph from 2010 was planted as part of the original landscape plan around 2000.”
Rehearing Decision (January 31, 2019)
• Ruling: The Petition was dismissed.
• Rationale: The ALJ found the Petitioner’s arguments to be “suppositions and inferences.” In contrast, she deemed the testimony of Maureen Karpinski to be “the only credible evidence offered regarding the landscaping of the homes.” Ms. Karpinski’s statement that backyards were sold as “just dirt” directly refuted the claim that any landscaping was “originally installed by Declarant.”
• The final conclusion stated: “As there was no evidence there was any landscaping or improvements originally installed by Declarant, there is no reason to conclude Respondent would be required to replace and maintain Petitioner’s back yard under the terms of Section 7.1.4 of the CC&Rs.”
Final Disposition
The Administrative Law Judge ordered that the Petition be dismissed. The order resulting from the rehearing was final and binding on the parties. Any further appeal would require seeking judicial review in the superior court within 35 days of the order.
Study Guide – 18F-H1818053-REL-RHG
Study Guide: Prall v. Villas at Tierra Buena HOA
This study guide provides a comprehensive review of the administrative case between Travis Prall and the Villas at Tierra Buena Homeowners Association, based on the legal decisions from September 2018 and January 2019. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a thorough understanding of the dispute, arguments, and legal reasoning involved.
Short-Answer Quiz
Answer each question in 2-3 sentences, based on the provided source context.
1. What specific violation of the community’s CC&Rs did the Petitioner, Travis Prall, allege in his petition?
2. What was the key physical difference between the backyards of the “interior homes” and the “exterior homes” in the Villas at Tierra Buena community?
3. What was the central point of disagreement between the Petitioner and the Respondent regarding the definition of a “Private Yard” versus a “Public Yard”?
4. According to Section 7.1.4 of the CC&Rs, what specific condition must be met for the HOA to be responsible for maintaining landscaping in a Public Yard?
5. What was the “Courtesy Letter” issued by the Respondent on May 3, 2018, and what did it request of the Petitioner?
6. What was the Petitioner’s primary argument for why the tree in his backyard must have been installed by the original developer?
7. What is the legal standard of proof the Petitioner was required to meet, and what does it mean?
8. In the first hearing, why did the Administrative Law Judge conclude that the tree was not part of the original landscape plan?
9. During the rehearing, what “credible evidence” was presented by the Respondent that refuted the Petitioner’s claims about original backyard landscaping?
10. Why did the Administrative Law Judge state that it was not necessary to rule on the interpretation of “Public Yard” vs. “Private Yard” in either decision?
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Answer Key
1. Petitioner Travis Prall alleged that the Villas at Tierra Buena HOA violated Section 7.1.4 of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs). The specific allegation was that the HOA neglected its duty for yard maintenance in visible public yards.
2. The exterior homes have six to seven-foot-tall block wall fences enclosing the backyards. The interior homes, like the Petitioner’s, have a shorter back wall, consisting of a two-foot-tall block wall topped with a two-foot-tall aluminum fence, making the backyards more visible.
3. The Petitioner argued that a yard must be both enclosed and not generally visible to be private, meaning his visible, enclosed yard was public. The Respondent argued that a yard was private if it was enclosed or shielded from view, meaning the Petitioner’s enclosed yard was private regardless of visibility.
4. According to Section 7.1.4, the HOA is required to “replace and maintain all landscaping and other Improvements as originally installed by Declarant on the Public Yards of Lots.” This means the landscaping in question must have been part of the original developer’s installation.
5. The “Courtesy Letter” was a notice from the HOA to the Petitioner concerning the tree in his backyard. It requested that he “Please trim or remove the tree in the back yard causing damage to the pony wall,” which had buckled due to the tree’s roots.
6. The Petitioner posited that the tree must have been installed by the developer due to its large size when he bought the home in 2010. He also noted that the backyard sprinkler system wrapped around the tree, suggesting they were installed together during original construction.
7. The Petitioner was required to meet the “preponderance of the evidence” standard. This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not; it is the greater weight of evidence.
8. The judge noted that after the original tree was removed in 2014, the present tree grew to a similar height in approximately five years from the remaining stump. Therefore, the judge concluded that the tree’s size in 2010 did not prove it was planted as part of the original landscape plan around the year 2000.
9. The Respondent presented the testimony of Maureen Karpinski, the Board President and a real estate agent who sold homes in the community during its development. She stated that to the best of her knowledge, none of the homes were sold with any landscaping or irrigation in the backyards and that they were “just dirt.”
10. The judge did not need to rule on the yard definition because the Petitioner first had to prove the tree was “originally installed by the Declarant” per Section 7.1.4. Since the Petitioner failed to provide sufficient evidence for this foundational claim in both hearings, the question of whether the yard was public or private became irrelevant to the outcome.
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Suggested Essay Questions
These questions are designed to test a deeper, more analytical understanding of the case. Answers are not provided.
1. Explain the concept of “burden of proof” and analyze how the Petitioner’s failure to meet the “preponderance of the evidence” standard was the determining factor in the dismissal of his petition in both the initial hearing and the rehearing.
2. Provide a detailed analysis of the competing interpretations of “Private Yard” and “Public Yard” as defined in Section 1.38 of the CC&Rs. Discuss the arguments made by both the Petitioner and the Respondent and explain why, despite this being a central point of contention, the final ruling did not hinge on this issue.
3. Compare the evidence presented by Travis Prall with the evidence presented by the Villas at Tierra Buena HOA. How did the nature and credibility of the evidence, particularly witness testimony versus suppositions, influence the Administrative Law Judge’s final decision?
4. Trace the procedural history of this case, starting from the initial event that triggered the HOA’s notice through the final decision after the rehearing. What were the key decision points and legal options available to the parties at each stage?
5. Discuss the significance of Maureen Karpinski’s testimony in the rehearing. How did her personal and professional experience with the community’s development directly address the central weakness of the Petitioner’s case from the first hearing?
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Glossary of Key Terms
Definition
Administrative Law Judge
The judicial officer who presides over hearings at the Office of Administrative Hearings and issues legal decisions, in this case, Tammy L. Eigenheer.
An abbreviation for the Declaration of Covenants, Conditions,Restrictions and Easements, the legal documents that govern a planned community or HOA.
Common Area
Land within the community for the common use and enjoyment of the owners; the HOA is responsible for maintaining landscaping in these areas.
Courtesy Letter
A formal notice issued by the HOA to a resident. In this case, it was a letter dated May 3, 2018, requesting that the Petitioner trim or remove a tree causing damage to a wall.
Declarant
The original developer who installed the initial landscaping and improvements in the community.
An abbreviation for Homeowners Association. In this case, the Villas at Tierra Buena HOA, which was the Respondent.
Petitioner
The party who files a petition initiating a legal action. In this case, homeowner Travis Prall.
Preponderance of the evidence
The standard of proof in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the “greater weight of the evidence.”
Private Yard
As defined in Section 1.38 of the CC&Rs, it is the portion of a Yard “which is enclosed or shielded from view by walls, fences, hedges or the like so that it is not generally Visible from Neighboring Property.” The interpretation of this definition was a key dispute in the case.
Public Yard
As defined in Section 1.38 of the CC&Rs, it is the portion of a Yard “which is generally visible from Neighboring Property, whether or not it is located in front of, beside, or behind the Residential Dwelling.”
Respondent
The party against whom a petition is filed. In this case, the Villas at Tierra Buena HOA.
Visible from Neighboring Property
A term defined in Section 1.37 of the CC&Rs. An object is considered visible if it can be seen by a six-foot-tall person standing on a neighboring property, with a specific exception for objects visible only through a wrought iron fence.
As defined in Section 1.38 of the CC&Rs, it is “the portion of the Lot devoted to Improvements other than the Residential Dwelling.”
Blog Post – 18F-H1818053-REL-RHG
He Fought His HOA Over a Single Tree—And Lost Because of a Clause Everyone Missed
For many homeowners, the relationship with their Homeowners Association is a delicate balance of rules, fees, and occasional frustrations. It’s a familiar story: a dispute arises over a seemingly minor issue, and suddenly you’re deep in the weeds of your community’s governing documents, convinced you’re in the right.
This was exactly the position of homeowner Travis Prall. He believed the rules for his community, the Villas at Tierra Buena HOA, clearly stated they were responsible for maintaining a troublesome tree in his backyard. Confident in his interpretation of the Covenants, Conditions, and Restrictions (CC&Rs), he took his case to an administrative law judge.
But the outcome of his legal battle hinged not on the clause he was arguing, but on details everyone had overlooked. The way he lost—first in an initial hearing, and then decisively in a rehearing he himself requested—reveals crucial lessons for any homeowner hidden within the dense language of community documents.
The Definition You Debate Isn’t Always the One That Matters
The core of Mr. Prall’s argument was a battle of definitions. According to the CC&Rs, the HOA was responsible for maintaining “Public Yards.” The rules defined a “Public Yard” as any part of a yard “which is generally visible from Neighboring Property.” Even though his backyard was enclosed by a four-foot wall, it was visible to his neighbors, so he argued it qualified.
The HOA countered with its own interpretation. They pointed to the definition of a “Private Yard,” which included any yard that is “enclosed.” Since his yard was enclosed, they claimed, it was his responsibility, regardless of visibility.
The two sides were locked in a debate over these competing definitions. But in the first hearing, the judge delivered a surprising twist: the entire debate was irrelevant. The judge acknowledged that Prall’s reading of the rules might even be plausible but declared that the tribunal was “not required to reach that issue.” Why? Because Prall had failed to clear an even more fundamental hurdle first. The judge found that Prall had “failed to present any evidence that the tree at issue was originally installed by the Declarant,” a fatal flaw that sidestepped his primary argument entirely.
“While the language of the CC&Rs may lend itself to a reading that Respondent is responsible for the maintenance of the enclosed back yards of the interior homes even if that is contrary to the intention of the drafters of the CC&Rs, the tribunal is not required to reach that issue in this matter.”
Prall had lost the first round not because his interpretation was wrong, but because he hadn’t proven his case on a different, more critical point.
It All Comes Down to “As Originally Installed”
Unsatisfied with the outcome, Prall requested and was granted a rehearing—a second chance to make his case. But this second chance also gave the HOA an opportunity to sharpen its defense, and it zeroed in on the exact clause that had decided the first hearing.
The case was ultimately decided by Section 7.1.4. This clause stated the HOA was only responsible for landscaping “as originally installed by Declarant”—a legal term for the original developer of the community.
This single phrase shifted the entire focus of the dispute. The question was no longer about “Public vs. Private” yards, but about the historical fact of what the developer had installed when the homes were first built around the year 2000.
At the rehearing, the HOA introduced the knockout blow: the testimony of Maureen Karpinski, an early resident and real estate agent who had sold homes in the community during its construction. She testified that to her knowledge, none of the homes were sold with any landscaping in the backyards. Her exact description was that the yards were “just dirt.”
The judge found this to be the “only credible evidence offered.” It completely undermined Prall’s case. If the developer never installed any landscaping in the backyards, there was no “original” landscaping for the HOA to maintain. Their responsibility under the governing documents was zero.
“Suppositions and Inferences” Aren’t Enough
In any formal dispute, the person making a claim has the “burden of proof.” Mr. Prall needed to prove his case by a “preponderance of the evidence,” a legal standard meaning it was more likely true than not.
He tried to meet this burden with logical arguments. He “posited that, given the size of the tree” in a 2010 photograph, it must have been planted when the home was built. He added that the “sprinkler system in his back yard wrapped around the tree as further evidence” that they were installed together by the developer.
But these deductions failed to convince the judge. In the final decision after the rehearing, these arguments were dismissed as the petitioner’s “suppositions and inferences.”
This stands in stark contrast to the HOA’s evidence. While Prall offered logical conclusions, the HOA offered direct testimony from someone who was there at the beginning. This case underscores a fundamental legal truth: personal belief and common-sense deductions are no substitute for verifiable facts and credible, first-hand testimony.
The Final Word is in the Fine Print
This homeowner’s fight over a single tree serves as a powerful cautionary tale. He built a logical case based on his interpretation of a key definition, only to lose because of a clause and a historical fact he hadn’t sufficiently proven.
The lessons are clear. Winning a dispute requires understanding every relevant clause in the governing documents, not just the one that seems most obvious. It requires acknowledging that the history of the community can be more powerful than a present-day interpretation of the rules. And most importantly, it requires presenting concrete proof, not just strong beliefs.
For any homeowner in an HOA, this story poses a crucial question: When was the last time you read your HOA’s documents from start to finish, and what hidden details might be waiting for you?
Case Participants
Petitioner Side
Travis Prall(petitioner)
Respondent Side
Maureen Karpinski(board member) President of the Board; witness
Frank Peake(property manager) Pride Community Management Witness; Owner of Pride Community Management
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
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Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard 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 that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
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Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.
Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.
Key Issues & Findings
Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.
Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.
Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.
Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA
Executive Summary
This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.
The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.
Case Overview
Entity
Petitioner
N. Wayne Dwight, Jr. (Homeowner and former ARC member)
Respondent
Whisper Mountain Homeowners Association (HOA)
Adjudicator
Administrative Law Judge Diane Mihalsky
Case Number
19F-H1918027-REL
Hearing Date
January 14, 2019
Decision Date
January 29, 2019
Core Allegation
The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:
1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.
2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.
This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.
Key Factual Background & Timeline
• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.
• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.
• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.
• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.
• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”
• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.
• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.
• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.
• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.
• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.
• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.
Central Arguments Presented
Petitioner’s Position (N. Wayne Dwight, Jr.)
• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.
• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.
• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.
• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.
• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.
• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”
Respondent’s Position (Whisper Mountain HOA)
• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.
• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.
• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.
• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.
• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.
Administrative Law Judge’s Analysis and Conclusions
Interpretation of Governing Documents
The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.
• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”
• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”
On the Board’s Authority
The ALJ affirmed the HOA’s authority to manage the ARC as it did.
• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.
• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”
• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”
On the Alleged Violations
Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.
• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.
• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.
Final Order and Implications
Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.
Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.
Study Guide – 19F-H1918027-REL
Study Guide: Dwight v. Whisper Mountain Homeowners Association
This study guide provides a comprehensive review of the Administrative Law Judge Decision in the case of N. Wayne Dwight, Jr. vs. Whisper Mountain Homeowners Association (No. 19F-H1918027-REL). It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the legal document.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source document.
1. What were the two specific allegations made by the Petitioner, N. Wayne Dwight, Jr., in his petition filed on October 22, 2018?
2. Identify the key parties in this case and describe their respective roles or relationships to the dispute.
3. What was the purpose and outcome of the ARC meeting held on July 17, 2018, regarding the Wells’ property?
4. Explain the actions taken by the Respondent’s Board of Directors during its meeting on August 6, 2018, regarding the Architectural Review Committee (ARC).
5. What was the Petitioner’s interpretation of CC&R § 3.4 regarding the removal of ARC members, and what was the potential consequence of this interpretation as noted by the Administrative Law Judge?
6. According to the Respondent’s Board president, Greg Robert Wingert, what were the primary reasons for removing the non-Board members of the ARC?
7. Describe the role of the Mariposa Group LLC in this case and explain how its communications created confusion.
8. How did the Board clarify its actions and ratify its decisions in the November 19, 2018 Resolution?
9. What is the legal standard of proof the Petitioner was required to meet, and how is it defined in the case documents?
10. What was the final ruling of the Administrative Law Judge, and what was the core reasoning behind the decision regarding CC&Rs §§ 3.2 and 7.7?
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Answer Key
1. The Petitioner alleged that the Respondent’s Board violated Covenants, Conditions, and Restrictions (CC&Rs) §§ 3.2 and 7.7. The specific violations cited were the dissolution or suspension of the Architectural Review Committee (ARC) on August 6, 2018, and the subsequent approval of an application from two members to build a detached garage on September 19, 2018.
2. The key parties are N. Wayne Dwight, Jr. (the “Petitioner”), a property owner and former ARC member, and the Whisper Mountain Homeowners Association (the “Respondent”). The case also involves Greg Robert Wingert, the President of the Respondent’s Board, and Mark and Connie Wells, the homeowners who applied to build a detached garage. The dispute centers on the Respondent’s authority over the ARC, of which the Petitioner was a member.
3. The purpose of the July 17, 2018, meeting was for the ARC, including the Petitioner, to consider Mark and Connie Wells’ application for a detached garage. The meeting was abruptly adjourned after the applicant allegedly threatened the committee, and no formal vote was conducted at that time. However, a letter dated July 30, 2018, later informed the Wells that the ARC had approved their request.
4. At the August 6, 2018, meeting, the Board of Directors discussed the need for more consistency and guidelines for the ARC. Citing these reasons and safety concerns from a prior meeting, the Board passed a motion to “suspend the ARC committee for 60 days” and announced that in the interim, the Board itself would review and approve all ARC submissions.
5. The Petitioner argued that CC&R § 3.4 only allowed the Board to appoint, not remove, ARC members. He contended that once appointed, members could only be removed for cause and were otherwise entitled to serve for life. The Judge noted this interpretation would elevate unelected ARC members above the elected Board and abrogate community control.
6. Greg Robert Wingert testified that the Board removed the non-Board ARC members due to concerns about the “manner in which questioning was done in a public forum.” The Board’s intent was not to eliminate the ARC, but to continue the review process while making it more civil, fair, consistent, and transparent.
7. The Mariposa Group LLC was the Respondent’s management company. Its employees, such as Ed Ericksen, were responsible for drafting official communications like minutes and letters. These communications used inaccurate words like “suspend” and “dissolve” to describe the Board’s actions regarding the ARC, which Mr. Wingert testified was an “unfortunate and inaccurate” choice of words that did not reflect the Board’s true intent.
8. The November 19, 2018, Resolution clarified that the Board had removed the existing ARC members and appointed itself to act and serve as the ARC, as was its right under CC&R § 3.4. The resolution explicitly stated that the Board members were the current members of the ARC and ratified all prior architectural decisions made by the Board while serving in this capacity, including the approval of the garage on Lot 18.
9. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard 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 that is sufficient to incline a fair and impartial mind to one side of the issue.
10. The Administrative Law Judge denied the Petitioner’s petition. The Judge concluded that the Board acted within its authority when it removed the non-Board ARC members and appointed itself to perform ARC functions, meaning it did not violate CC&R § 7.7 by approving the Wells’ application. The Judge also found no violation of CC&R § 3.2, noting that the CC&Rs do not prohibit Board members from acting as the ARC.
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Essay Questions
The following questions are designed for longer-form analysis. Formulate a comprehensive response based solely on the facts and legal interpretations presented in the source document.
1. Analyze the Administrative Law Judge’s interpretation of the CC&Rs, particularly § 3.4. How does this interpretation address the transfer of power from the “Declarant” to the Board, and how does it counter the Petitioner’s argument for lifetime appointments?
2. Discuss the concept of an “appeal” as outlined in CC&R § 3.2. Evaluate the potential conflict of interest and the issue of futility raised when the Board of Directors also serves as the Architectural Review Committee.
3. Trace the timeline of events surrounding the Wells’ application for a detached garage. How did this specific application serve as the catalyst for the broader conflict between the Petitioner and the Respondent’s Board?
4. Examine the role of communication and language in this dispute. How did the specific wording used by the management company in official documents (e.g., “suspend”) differ from the Board’s stated intent, and how did this discrepancy fuel the conflict?
5. Based on the evidence presented, evaluate the argument that the Board’s actions were a necessary measure to ensure a “civil, fair, consistent, and transparent” architectural review process versus the argument that the Board overstepped its authority as defined by the CC&Rs.
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Glossary of Key Terms
Definition within the Source Context
Administrative Law Judge (ALJ)
An independent judicial officer (Diane Mihalsky) from the Office of Administrative Hearings tasked with conducting an evidentiary hearing and rendering a decision on the petition.
Architectural Review Committee (ARC)
A committee established to review and approve or deny any improvements, alterations, or other work that alters the exterior appearance of a property. Per the CC&Rs, its decisions are final unless appealed to the Board.
ARC Charter
A document adopted by the Respondent’s Board on March 15, 2016, which provided that the ARC would consist of up to four members appointed by the Board and that the Board vested itself with the sole right to appoint and remove all appointed ARC members at any time.
Board of Directors (Board)
The elected body that conducts the affairs of the Whisper Mountain Homeowners Association. The document presumes they are elected by members to specific terms.
Covenants, Conditions, and Restrictions (CC&Rs)
The governing documents for the Whisper Mountain planned community, recorded on September 7, 2016. They outline the rules for property use, the structure of the HOA, and the functions of bodies like the ARC.
Declarant
The original developer who built the planned community, identified as VIP Homes. The Declarant initially held the sole right to appoint and remove ARC members, a right that transferred to the Board after the developer was no longer involved.
Mariposa Group LLC
The management company employed by the Respondent HOA. Its employees, such as Douglas Egan and Ed Ericksen, were responsible for drafting official communications like meeting minutes and approval letters.
Office of Administrative Hearings (OAH)
An independent state agency to which the Department of Real Estate referred the petition for an evidentiary hearing.
Petitioner
N. Wayne Dwight, Jr., a property owner in the Whisper Mountain development and a former member of the ARC. He filed the petition alleging the HOA violated its CC&Rs.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Respondent
The Whisper Mountain Homeowners Association (“HOA”), the governing body for the development. The Respondent was represented by its Board and legal counsel.
Blog Post – 19F-H1918027-REL
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between a homeowner, N. Wayne Dwight, Jr. (Petitioner), and the Whisper Mountain Homeowners Association (Respondent). The Petitioner alleged that the HOA’s Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by dissolving or suspending the Architectural Review Committee (ARC) and subsequently approving an application for a detached garage. The decision details the background, evidence presented at the hearing, and the Administrative Law Judge’s (ALJ) findings and conclusions of law. Ultimately, the ALJ denied the petition, finding that the Board acted within its authority under the governing documents to remove non-Board ARC members and appoint itself to fulfill the ARC’s functions. The ALJ concluded that the Petitioner failed to prove the HOA violated the specified CC&Rs.
Based on 1 source
Case Participants
Petitioner Side
N. Wayne Dwight, Jr.(petitioner) Appeared on his own behalf; former ARC member; testified on his own behalf
Respondent Side
Troy B. Stratman(attorney) Stratman Law Firm, PLC Represented Whisper Mountain Homeowners Association
Greg Robert Wingert(board member/witness) Whisper Mountain Homeowners Association Board President; Chairman of the ARC; testified for Respondent
Pam Cohen(board member) Whisper Mountain Homeowners Association Seconded motions; identified as 'Pam' in meeting minutes
Ronna(board member) Whisper Mountain Homeowners Association Made motion to suspend ARC
Gary(board member) Whisper Mountain Homeowners Association
Douglas Egan(property manager) Mariposa Group LLC Sent approval letter for garage application
Ed Ericksen(property manager) Mariposa Community Manager; sent approval/clarification letters regarding Wells' request
Neutral Parties
Diane Mihalsky(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del Sol(staff) Transmitted decision
Other Participants
Mark Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Connie Wells(owner/applicant) Whisper Mountain development Submitted application for detached garage (Lot 18)
Phil Hoyt(owner/member) Whisper Mountain development (Lot 16)
Andy Horn(owner/member) Whisper Mountain development (Lot 1)
Jason Komorowski(owner/member) Whisper Mountain development (Lot 51)
Connie Harrison(neighbor) Whisper Mountain development Mentioned regarding Lot 18 variance condition
Don Berry(owner/member) Whisper Mountain development (Lot 45)
Long Meadow Ranch East Property Owners Association, Inc.
Counsel
Ashley N. Moscarello, Esq.
Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
The Administrative Law Judge dismissed the petition upon rehearing, holding that the email chain discussing an incident involving the Petitioner's husband was an informal communication among Board members, not an official record of the association under A.R.S. § 33-1805(A), since the Board never took any formal action on the matter. Therefore, the HOA was not required to produce an un-redacted copy.
Why this result: The Petitioner failed to meet the burden of proof that the email string constituted 'financial and other records of the association' which Respondent was required to provide.
Key Issues & Findings
Failure to produce association records (un-redacted email string) upon member request
Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to produce an un-redacted copy of an email chain among Board members concerning an incident where Petitioner's husband allegedly harassed potential buyers, arguing the email constituted an official association record.
Orders: Petition denied and dismissed. The HOA did not violate A.R.S. § 33-1805(A) as the email string was determined not to be an official record of the association.
Legal Dispute Briefing: Wiercinski v. Long Meadow Ranch East POA
Executive Summary
This document provides a comprehensive analysis of the legal dispute between homeowner Patricia Wiercinski and the Long Meadow Ranch East Property Owners Association, Inc. (the “Respondent” or “HOA”). The case, adjudicated by the Arizona Office of Administrative Hearings, centered on the HOA’s alleged failure to produce official records in violation of Arizona statute A.R.S. § 33-1805. The dispute originated from a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly confronted and verbally abused potential buyers of a neighboring property, causing them to withdraw their interest.
The core of the legal challenge involved an email exchange among HOA board members discussing the incident. Wiercinski’s petition, filed on October 18, 2018, demanded access to what she believed were official HOA documents related to this event. The case proceeded through an initial hearing on January 10, 2019, and a subsequent rehearing on April 22, 2019, both overseen by Administrative Law Judge Diane Mihalsky.
In both hearings, the Judge ruled decisively in favor of the HOA. The central finding was that the private email communications among board members did not constitute an “official record of the association.” Therefore, the HOA had no statutory obligation to produce them or provide an un-redacted version. The judge upheld the HOA’s decision to redact the names of the potential buyers and their agent, citing credible testimony regarding Mr. Coates’ history of “threatening and bullying neighbors” as a reasonable justification for protecting those individuals from potential harassment. Both of Wiercinski’s petitions were ultimately denied and dismissed.
Case Overview and Parties Involved
The dispute was formally adjudicated within the jurisdiction of the Arizona Department of Real Estate and referred to the Office of Administrative Hearings for evidentiary proceedings.
• Case Number: 19F-H1918028-REL
• Initial Hearing Date: January 10, 2019
• Rehearing Date: April 22, 2019
• Presiding Judge: Administrative Law Judge Diane Mihalsky
Key Individuals and Entities
Name/Entity
Patricia Wiercinski
Petitioner; homeowner and member of the HOA.
Wayne Coates
Petitioner’s husband; central figure in the June 19, 2017 incident.
Long Meadow Ranch East POA, Inc.
Respondent; the Homeowners’ Association (“HOA”).
Michael “Mike” Olson
President of the Respondent’s Board of Directors.
Gregg Arthur
Director on the Respondent’s Board and a realtor.
Joe Zielinski
Director on the Respondent’s Board.
Kathy Andrews
Community Manager for the Respondent, employed by HOAMCO.
John Allen
HOA member and owner of the lot being sold.
Ashley N. Moscarello, Esq. (Goodman Law Group)
Legal representative for the Respondent.
Diane Mihalsky
Administrative Law Judge, Office of Administrative Hearings.
The Core Incident of June 19, 2017
The legal dispute stemmed from an encounter on June 19, 2017, involving Wayne Coates and a family considering the purchase of a vacant lot on Puntenney Rd., located across the street from the Wiercinski/Coates residence.
According to an email from the prospective buyers, Mr. Coates confronted them, their son, and their architect as they were viewing the property.
• Coates’ Alleged Actions: He “came out of his house and was belligerent and cursing at them,” claiming “nothing was for sale around here.” The potential buyer described him as “verbally abusive and extremely confrontational,” making “rude remarks while cussing” and displaying “extreme aggressive behavior.”
• Impact on the Sale: The confrontation directly caused the potential buyers to withdraw their offer. In their correspondence, they stated:
• Broader Concerns: The incident was seen by some as detrimental to the entire community. Board Director Gregg Arthur noted, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all) not to mention the property owners.”
The Initial Hearing and Decision (January 2019)
The initial hearing focused on whether the HOA had withheld official records of its deliberations or decisions regarding the June 19, 2017 incident.
Petitioner’s Position
Patricia Wiercinski argued that the HOA violated A.R.S. § 33-1805 by failing to produce documents. Her key assertions were:
• Because an email about the incident was sent to a quorum of the Board, the matter constituted official business.
• The Board was legally required to make a formal motion and arrive at a documented decision, even if that decision was to take no action.
• She had never received any such documentation, such as minutes from an executive session or an open meeting.
• She pointed to a Board resolution regarding the electronic storage of documents as evidence that such records must exist.
Respondent’s Position
The HOA, represented by Ashley N. Moscarello, denied any violation. Their defense included:
• The email chain was an informal communication among neighbors and Board members on their personal email servers, not an official HOA record.
• No member had ever requested the Board take official action on the matter.
• The email string was provided voluntarily to the Petitioner.
• The names of the potential buyers and their real estate agent were redacted specifically because “Mr. Coates had a history of bullying and intimidating people.”
• The Board never formally discussed the incident, held a meeting, voted, or took any official action.
• The Community Manager, Kathy Andrews, testified that no official records (agendas, resolutions, minutes, etc.) pertaining to the incident existed.
Outcome and Rationale
The Administrative Law Judge denied the petition. The key conclusions of law were:
• The burden of proof was on the Petitioner to show a violation occurred.
• The simple fact that a quorum of Board members discussed a topic in private emails “does not make it official Board business,” especially when no action is taken.
• Forcing volunteer board members to formally document every informal discussion would be an “unnecessary and burdensome requirement.”
• Because the Petitioner did not establish that any official documents regarding the incident existed, the petition was dismissed.
The Rehearing and Final Decision (May 2019)
Wiercinski requested and was granted a rehearing, alleging “misconduct by the judge.” In this second hearing, she significantly altered her legal argument.
Petitioner’s Evolved Position
Wiercinski abandoned her claim that the Board was required to create a formal record of inaction. Instead, her new theory was:
• The email string itself, having been voluntarily produced by the HOA, must be considered an “official record of the association.”
• As an official record, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted copy.
• She argued that she and Mr. Coates had a right to know the identities of those who had accused him of belligerence.
Respondent’s Defense
The HOA’s defense remained consistent:
• The redaction of names was a necessary and reasonable measure to protect the individuals from potential harassment by Mr. Coates.
• The incident was a personal dispute between neighbors and did not violate any of the HOA’s governing documents (CC&Rs, bylaws), placing it outside the Board’s enforcement authority.
• Kathy Andrews again testified that the email was not part of the association’s archived business records, as the Board took no official action.
Final Outcome and Rationale
The Judge once again dismissed the petition. The final ruling reinforced the initial decision and provided further clarity:
• The email string was definitively not a “record of the association.”
• Because it was not an official record, A.R.S. § 33-1805 did not compel the HOA to provide an un-redacted version.
• The Judge explicitly validated the HOA’s motive for the redactions, stating that the Board President’s fear that “Mr. Coates would harass the real estate agent and potential purchaser… does not appear unreasonable.”
Key Evidence and Testimony
The email communications provided the primary evidentiary basis for the case.
Incriminating Email Content
Several emails from June 20, 2017, highlighted the severity of the incident and concerns about Wayne Coates:
• From Real Estate Agent to Potential Buyer: “He [John Allen] knows this person, Wayne Coates, and said he has been an issue in the neighborhood before. He has contacted Hoamco and is seeking legal [counsel] to stop this menace.”
• From Director Joe Zielinski to the Board: “The YCSO [Yavapai County Sheriff’s Office] may file charges against Wayne for disorderly conduct/harassment… given Wayne’s arrest record and prison term and criminal history. … I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”
• From Director Gregg Arthur to the Board: “I was hoping that this would not be a situation we would have to encounter with Wayne Coates and Patricia however here it is on our door step.”
Definition of “Official Records”
Testimony from Community Manager Kathy Andrews was crucial in establishing the distinction between official and unofficial communications. She defined official records as including:
• Governing documents and architectural guidelines.
• Board and general meeting minutes.
• Expenditures, receipts, contracts, and financials.
• Anything submitted to the Board for official action.
She confirmed that because the Board took no action on the June 19, 2017 incident, the related emails were not included in Respondent’s archived records.
Study Guide – 19F-H1918028-REL
Wiercinski v. Long Meadow Ranch East POA: A Case Study
This study guide provides a comprehensive overview of the administrative case of Patricia Wiercinski versus the Long Meadow Ranch East Property Owners Association, Inc. The case revolves around a homeowner’s request for association records and the legal definition of what constitutes an official document that a homeowners’ association is required to produce under Arizona law. The material is drawn from two Administrative Law Judge Decisions, dated January 22, 2019, and May 1, 2019.
Key Parties and Individuals
Role / Title
Affiliation
Patricia Wiercinski
Petitioner
Homeowner, Member of Respondent
Wayne Coates
Petitioner’s Husband
Homeowner
Long Meadow Ranch East POA, Inc.
Respondent
Homeowners’ Association (HOA)
Diane Mihalsky
Administrative Law Judge (ALJ)
Office of Administrative Hearings
Ashley N. Moscarello, Esq.
Legal Counsel for Respondent
Goodman Law Group
Michael “Mike” Olson
President of the Board
Respondent (HOA)
Gregg Arthur
Director on the Board
Respondent (HOA)
Kathy Andrews
Community Manager
HOAMCO (Respondent’s management company)
John Allen
Property Owner / HOA Member
Long Meadow Ranch East
Joe Zielinski
Director on the Board
Respondent (HOA)
Jim Robertson
Director on the Board
Respondent (HOA)
Tom Reid
Director on the Board
Respondent (HOA)
Boris Biloskirka
Former Board Member
Respondent (HOA)
Timeline of Key Events
June 19, 2017
An incident occurs where Wayne Coates allegedly acts belligerently toward potential buyers of John Allen’s property.
June 20, 2017
An email exchange regarding the incident occurs between John Allen, his realtor, and members of the HOA Board.
October 18, 2018
Patricia Wiercinski files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1805.
January 10, 2019
The initial evidentiary hearing is held before Administrative Law Judge Diane Mihalsky.
January 22, 2019
The ALJ issues a decision denying Wiercinski’s petition.
Post-Jan 22, 2019
Wiercinski requests a rehearing, alleging misconduct by the judge. The request is granted.
April 22, 2019
The rehearing is held.
May 1, 2019
The ALJ issues a final decision, again dismissing Wiercinski’s petition.
The Core Dispute: The June 19, 2017 Incident
On June 19, 2017, potential buyers, along with their builder, architect, and son, were viewing a lot for sale owned by John Allen on Puntenney Rd. The lot was across the street from the home of Patricia Wiercinski and Wayne Coates. An elderly man, later identified as Wayne Coates, came out of the house and was allegedly “belligerent and cursing” at the group, telling them nothing was for sale and they should not be snooping around. The potential buyers described the individual as “verbally abusive and extremely confrontational,” displaying “extreme aggressive behavior.” As a result of this encounter, the potential buyers decided to remove the lot from their list of considerations, stating they were seeking a “quiet, peaceful, and neighborly place to retire. Not a place with hostility and confrontation.”
This incident prompted John Allen to contact his realtor and members of the HOA Board, seeking action to prevent such behavior from interfering with future property sales.
The Legal Proceedings
Petitioner’s Argument: Patricia Wiercinski alleged that the HOA (Respondent) violated A.R.S. § 33-1805 by failing to produce documents related to its deliberations, decisions, and actions regarding the June 19, 2017 incident. Her core arguments were:
• The email about the incident was sent to a quorum of the Board, making it official business.
• The Board was required to make a formal motion and decision, even if it decided to take no action against her husband.
• She never received documents showing the Board addressed the incident in an executive session or open meeting.
• She did not receive a map referenced in one of the emails or a letter mentioned by board member Joe Zielninski in a video.
• An HOA resolution to electronically store all association business documents meant the requested records must exist.
Respondent’s Argument: The HOA denied violating any statute. Its defense was based on the following points:
• The Board never took any official action against Wiercinski or Coates as a result of the incident.
• The email string was an informal communication among Board Directors on their personal servers and was not kept as an official record. It was provided to Wiercinski voluntarily.
• The names of the potential purchasers and real estate agent were redacted from the emails because Wayne Coates has a known history of “threatening and bullying neighbors and others.”
• No official discussion or vote on the incident ever occurred in an executive session or general meeting.
ALJ’s Decision (January 22, 2019): The Administrative Law Judge denied the petition. The decision concluded that Wiercinski did not meet her burden of proof to establish that any official documents regarding the incident existed that the Respondent failed to produce. The judge reasoned that the mere fact a quorum of Board members informally discusses a topic in private emails does not make it official Board business, especially when no action is taken.
Reason for Rehearing: Wiercinski requested a rehearing, alleging misconduct by the judge. The Commissioner of the Department of Real Estate granted the request without noting any specific misconduct or stating why it should have changed the result.
Petitioner’s Changed Argument: At the rehearing, Wiercinski changed her theory of the case. She no longer argued that the Board failed to produce a record of a formal decision. Instead, she argued that:
• The email string itself was an official record of the association’s business.
• A.R.S. § 33-1805 therefore required the HOA to produce a fully un-redacted copy of the emails.
• She and Mr. Coates had a right to know the names of the individuals accusing Mr. Coates of belligerence.
Respondent’s Rebuttal: The HOA maintained its position:
• The email string was not an official record because the Board never took any action on the matter. The incident did not violate any of the HOA’s CC&Rs, bylaws, or anything else it was empowered to enforce.
• Community Manager Kathy Andrews testified that official records include governing documents, minutes, and items submitted to the Board for action. Since the Board took no action, the email was not included in the association’s archived records.
• The names were redacted because of Mr. Coates’s history of intimidation, and the Board president feared he would harass the individuals involved.
ALJ’s Final Decision (May 1, 2019): The petition was dismissed again. The ALJ reaffirmed that the email string was not a “record of the association.” Therefore, A.R.S. § 33-1805(A) did not require the Respondent to provide an un-redacted version to the Petitioner. The judge also noted that the fear of harassment by Mr. Coates, which prompted the redactions, “does not appear unreasonable.”
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Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. What specific event on June 19, 2017, initiated the legal dispute?
2. What Arizona statute did Patricia Wiercinski claim the HOA violated, and what does that statute generally require?
3. Why did the HOA state it redacted names from the email chain it provided to Wiercinski?
4. In the initial hearing, what did Wiercinski argue the HOA Board was required to do even if it decided to take no action on the incident?
5. How did Wiercinski’s primary legal argument change between the first hearing and the rehearing?
6. Who is Kathy Andrews, and what was her testimony regarding the HOA’s official records?
7. Did the HOA Board ever hold a formal meeting or take an official vote regarding the incident involving Wayne Coates?
8. According to the ALJ, does an informal email discussion among a quorum of board members automatically constitute “official Board business”?
9. What was the final ruling in the case after the rehearing?
10. What reason did HOA President Mike Olson give for the Board not taking official action on the June 19, 2017 incident?
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Answer Key
1. The event was an alleged confrontation where Wayne Coates was belligerent and verbally abusive toward potential buyers who were viewing a property for sale across the street from his home. This encounter caused the buyers to lose interest in the property.
2. Wiercinski claimed the HOA violated A.R.S. § 33-1805. This statute requires that all financial and other records of a homeowners’ association be made reasonably available for examination by any member.
3. The HOA stated it redacted the names of the potential purchasers and their real estate agent due to Wayne Coates’s history of “threatening and bullying neighbors and others.” Board President Mike Olson testified he feared Mr. Coates would harass the individuals if their identities were revealed.
4. In the initial hearing, Wiercinski argued that the Board was required to make a formal motion and arrive at a formal, documented decision even if it decided it was not going to take any action against her husband.
5. In the rehearing, Wiercinski’s argument shifted from claiming the HOA failed to produce a record of a decision to arguing the email string itself was an official record. She then demanded that the HOA provide a fully un-redacted version of this email string.
6. Kathy Andrews is the community manager for the HOA, employed by the management company Hoamco. She testified that the association’s official records include items like governing documents, meeting minutes, and anything submitted to the Board for action, and that the email was not an official record because the Board took no action.
7. No. Testimony from multiple witnesses, including Mike Olson and Gregg Arthur, confirmed that the Board never discussed the incident at an executive meeting or general membership meeting and never voted or took any official action as a result of the incident.
8. No. The ALJ’s decision states that the mere fact a quorum of Board members discusses a topic does not make it official Board business, especially if they do not take any action to make it so.
9. The final ruling was that the Petitioner’s petition was dismissed. The ALJ found that the email string was not an official record of the association, so the HOA was not required by law to provide an un-redacted version.
10. Mike Olson testified that the Board never voted to take any action because the alleged incident did not violate the Respondent’s CC&Rs, bylaws, or anything else that the HOA was authorized or empowered to enforce.
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Essay Questions
1. Analyze the distinction made by the Administrative Law Judge between informal discussions among board members and “official Board business.” How did this distinction shape the outcome of both hearings?
2. Discuss the evolution of Patricia Wiercinski’s legal strategy from the initial hearing to the rehearing. Was the change in argument effective, and why or why not?
3. Examine the roles of A.R.S. § 33-1805 and A.R.S. § 33-1804 in this case. Explain how the Petitioner and Respondent interpreted these statutes differently and how the Administrative Law Judge ultimately applied them.
4. Based on the testimony of Mike Olson and Kathy Andrews, describe the HOA’s official position on record-keeping and its justification for not treating the email string as an official document.
5. Evaluate the Respondent’s decision to redact the names of non-members from the email string. What reasons were given for this action, and how did the Administrative Law Judge view this justification in the final ruling?
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Glossary
• Administrative Law Judge (ALJ): The impartial judge who presides over administrative hearings, hears evidence, and makes legal decisions. In this case, the ALJ was Diane Mihalsky.
• A.R.S. § 33-1805(A): An Arizona Revised Statute cited in the case which provides that “all financial and other records of the association shall be made reasonably available for examination by any member.”
• A.R.S. § 33-1804(E)(4): An Arizona Revised Statute cited in the case which provides that any quorum of the board of directors that meets informally to discuss association business must comply with open meeting and notice provisions.
• Homeowners’ Association (HOA): An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Long Meadow Ranch East Property Owners Association, Inc.
• Petitioner: The party who files a petition to initiate a legal proceeding. In this case, Patricia Wiercinski.
• Preponderance of the Evidence: The standard of proof required in this administrative hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the “most convincing force.”
• Quorum: The minimum number of members of a deliberative assembly (such as a board of directors) necessary to conduct the business of that group. The petitioner argued that because a quorum of the board was included on the emails, the discussion constituted official business.
• Respondent: The party against whom a petition is filed. In this case, the Long Meadow Ranch East Property Owners Association, Inc.
Blog Post – 19F-H1918028-REL
4 Shocking Lessons from an HOA Lawsuit About a “Nightmare Neighbor”
Introduction: Behind the Closed Doors of the HOA Board
Many people live in communities governed by a Homeowners’ Association (HOA), navigating the rules and paying the dues as part of modern suburban life. But what happens when a serious dispute between neighbors erupts? What if one resident’s behavior is so aggressive that it costs another the sale of their property? A real-life administrative law case from Prescott, Arizona, provides a rare and fascinating look into the messy reality of HOA governance. The lawsuit, filed by a homeowner against her HOA for allegedly withholding records, reveals surprising truths about what constitutes “official business” and the real-world limits of an HOA’s power.
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1. Not All HOA Talk is “Official Business”—Even When the Whole Board Is In on It.
The case centered on a dramatic incident. A homeowner’s husband, Wayne Coates, was accused of being “belligerent and cursing” at potential buyers viewing a lot across the street, causing them to back out of the sale. The distressed property seller, John Allen, emailed an HOA board member, Gregg Arthur, who then forwarded the complaint to the entire board. The petitioner, Mr. Coates’ wife, argued that this email chain was an official HOA record.
Her argument rested on a profound misunderstanding of board governance that many residents likely share: she claimed the board was legally required to make a motion and arrive at a formal decision even if it decided to do nothing. The administrative law judge firmly rejected this idea. The emails were deemed informal, private communications, not official records.
The judge clarified that “official business” is triggered when a board moves toward a formal decision or action that would bind the association, such as spending funds, issuing a violation, or changing a rule. These emails were purely informational and investigatory, never reaching that threshold. This distinction is a cornerstone of volunteer board governance, as it protects boards from being paralyzed by procedure. The judge’s decision powerfully refutes the notion that boards must formally document every issue they choose not to pursue:
the mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business. Any other result would impose an unnecessary and burdensome requirement on volunteers who are not compensated for their time who are may be neighbors and who may also be friends, in addition to being Board members.
2. A Neighbor’s Behavior Can Kill a Property Sale, and Your HOA Might Be Powerless.
The impact of Mr. Coates’ alleged actions was immediate and severe. The potential buyers, seeking a peaceful retirement, were so shaken by the confrontation that they explicitly withdrew their interest in the property.
An email from the potential buyer, submitted as evidence, vividly illustrates the direct financial consequence of the neighbor’s behavior:
In closing when we returned one thing that stands out is would we want to live next to this type of behavior of [a] neighbor? The answer is no, this lot was one that we had in our top 2 Lots as a consideration for purchase but due to the volatile potential of this man, we have decided at this point to remove it from our list.
Despite the clear harm to a member, the HOA concluded it could not intervene. According to testimony, Community Manager Kathy Andrews explained that the HOA had “no authority to become involved in a personal dispute between neighbors.” Further, Board President Mike Olson testified that the incident did not violate any specific CC&Rs or bylaws the board was empowered to enforce. This highlights a counter-intuitive reality for many homeowners: not all bad neighbor behavior falls under an HOA’s jurisdiction, even when it negatively affects property sales. However, while the HOA was powerless, the situation was not a dead end for the seller, who court records show did eventually sell his lot to someone else.
3. Transparency Has Limits, Especially When a Resident Is Seen as a Threat.
The petitioner demanded an un-redacted copy of the emails, wanting to know exactly who was accusing her husband. The HOA refused, redacting the names of the potential buyers and their real estate agent.
The reason, according to sworn testimony from HOA President Mike Olson, was that Mr. Coates had a “history of threatening and bullying neighbors and others.” This case highlights the inherent tension between a member’s right to information and the board’s fiduciary duty to protect individuals from harm. While members have a right to access official records, that right is not absolute.
The judge validated the board’s exercise of its duty of care, finding its rationale for the redactions to be sound. In a moment of legal irony, the judge noted that the board’s fear was reasonable, “especially given Mr. Coates’ role in causing Petitioner to prosecute this petition at the original hearing and rehearing.” In effect, the petitioner’s own aggressive pursuit of the case in court helped to legally justify the board’s initial decision to protect identities from her husband.
4. Suing Your HOA Can Put Your Own Dirty Laundry on Display.
Perhaps the greatest irony of the lawsuit is what it ultimately accomplished. In her quest to obtain what she believed were improperly withheld documents, the petitioner’s legal action placed deeply unflattering information about her husband directly into the public record for anyone to see.
Emails submitted as evidence contained damaging statements, including an email from board member Joe Zielinski that is now a permanent part of the court file. It contained severe allegations that went far beyond the initial incident.
The YCSO [Yavapai County Sheriff’s Office] may file charges against Wayne for disorderly conduct/harassment, based on what happened to Mr. Allan and the others in attendance, given Wayne’s arrest record and prison term and criminal history. . . . I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.
This serves as a powerful “be careful what you wish for” lesson in HOA litigation. The lawsuit, intended to hold the HOA accountable, permanently enshrined the allegations about her husband’s “arrest record and prison term” in the public court record—the very opposite of the privacy and vindication the petitioner was likely seeking.
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Conclusion: The Fine Line Between Community and Controversy
This case peels back the curtain on the complex world of volunteer-run HOAs. It demonstrates that the line between an informal discussion among neighbors and official, actionable HOA business is finer and more consequential than most residents assume. It shows that an HOA’s power has clear limits and that a board’s duty to protect individuals can sometimes override demands for total transparency. It makes you wonder: when you see a problem in your neighborhood, is it truly the HOA’s business to solve, or is it a personal dispute between neighbors?
Case Participants
Petitioner Side
Patricia Wiercinski(petitioner) Appeared on her own behalf
Wayne Coates(petitioner's husband) Central figure in the June 19, 2017 incident
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Law Group Represented Respondent
Michael Olson(board president, witness) President of Respondent's board; testified at hearing and rehearing
Gregg Arthur(board director, witness) Director on Respondent's board; testified at hearing
Kathy Andrews(property manager, witness) HOAMCO Respondent's community manager; employed by HOAMCO; testified at hearing and rehearing
John Allen(member/complainant) Owner trying to sell property across the street from Petitioner; member of Respondent
Jim Robertson(board director) Director on Respondent's board
Joe Zielinski(board director, witness) Director on Respondent's board; mentioned conversation with YCSO deputy
Tom Reid(board director) Director on Respondent's board
Boris Biloskirka(former board member) Recipient of emails; identified as a former Board member
Josh(compliance officer) Referenced in emails regarding compliance inspections
Neutral Parties
Diane Mihalsky(ALJ) Administrative Law Judge
Shelia Polk(head prosecutor) Head of the office Joe Zielinski sought to contact regarding Wayne Coates
YCSO’s deputy(deputy) Yavapai County Sheriff’s Office Conversed with Joe Zielinski regarding the incident
Judy Lowe(commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative staff) Transmitted decision electronically
Long Meadow Ranch East Property Owners Association, Inc.
Counsel
Ashley N. Moscarello, Esq.
Alleged Violations
A.R.S. § 33-1805(A)
Outcome Summary
The ALJ denied and dismissed the petition, finding that Petitioner failed to establish that the Respondent HOA violated A.R.S. § 33-1805(A). The documents requested (an email string among Board members) were informal communications and were not considered official records of the association because the Board never took formal action on the incident.
Why this result: The Petitioner failed to meet the burden of proof that the Board created or possessed any official documents related to the incident that they failed to produce, as the emails were deemed private, informal communications rather than official records.
Key Issues & Findings
Failure to produce association records (un-redacted email string)
Petitioner alleged Respondent violated A.R.S. § 33-1805 by failing to produce official documents, specifically an un-redacted email string among Board members concerning an incident where Petitioner's husband allegedly harassed potential property buyers.
Orders: Petition dismissed because the documents sought (un-redacted emails) were informal communications, not official records of the association required to be produced under A.R.S. § 33-1805(A).
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805(A)
A.R.S. § 33-1804(E)(4)
Analytics Highlights
Topics: homeowner records request, association records, informal communications, board quorum, records disclosure
Additional Citations:
A.R.S. § 33-1805(A)
A.R.S. § 33-1804(E)(4)
A.R.S. § 32-2199(B)
Audio Overview
Decision Documents
19F-H1918028-REL Decision – 684134.pdf
Uploaded 2026-01-23T17:27:32 (149.9 KB)
Briefing Doc – 19F-H1918028-REL
Legal Dispute Briefing: Wiercinski v. Long Meadow Ranch East POA
Executive Summary
This document provides a comprehensive analysis of the legal dispute between homeowner Patricia Wiercinski and the Long Meadow Ranch East Property Owners Association, Inc. (the “Respondent” or “HOA”). The case, adjudicated by the Arizona Office of Administrative Hearings, centered on the HOA’s alleged failure to produce official records in violation of Arizona statute A.R.S. § 33-1805. The dispute originated from a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly confronted and verbally abused potential buyers of a neighboring property, causing them to withdraw their interest.
The core of the legal challenge involved an email exchange among HOA board members discussing the incident. Wiercinski’s petition, filed on October 18, 2018, demanded access to what she believed were official HOA documents related to this event. The case proceeded through an initial hearing on January 10, 2019, and a subsequent rehearing on April 22, 2019, both overseen by Administrative Law Judge Diane Mihalsky.
In both hearings, the Judge ruled decisively in favor of the HOA. The central finding was that the private email communications among board members did not constitute an “official record of the association.” Therefore, the HOA had no statutory obligation to produce them or provide an un-redacted version. The judge upheld the HOA’s decision to redact the names of the potential buyers and their agent, citing credible testimony regarding Mr. Coates’ history of “threatening and bullying neighbors” as a reasonable justification for protecting those individuals from potential harassment. Both of Wiercinski’s petitions were ultimately denied and dismissed.
Case Overview and Parties Involved
The dispute was formally adjudicated within the jurisdiction of the Arizona Department of Real Estate and referred to the Office of Administrative Hearings for evidentiary proceedings.
• Case Number: 19F-H1918028-REL
• Initial Hearing Date: January 10, 2019
• Rehearing Date: April 22, 2019
• Presiding Judge: Administrative Law Judge Diane Mihalsky
Key Individuals and Entities
Name/Entity
Patricia Wiercinski
Petitioner; homeowner and member of the HOA.
Wayne Coates
Petitioner’s husband; central figure in the June 19, 2017 incident.
Long Meadow Ranch East POA, Inc.
Respondent; the Homeowners’ Association (“HOA”).
Michael “Mike” Olson
President of the Respondent’s Board of Directors.
Gregg Arthur
Director on the Respondent’s Board and a realtor.
Joe Zielinski
Director on the Respondent’s Board.
Kathy Andrews
Community Manager for the Respondent, employed by HOAMCO.
John Allen
HOA member and owner of the lot being sold.
Ashley N. Moscarello, Esq. (Goodman Law Group)
Legal representative for the Respondent.
Diane Mihalsky
Administrative Law Judge, Office of Administrative Hearings.
The Core Incident of June 19, 2017
The legal dispute stemmed from an encounter on June 19, 2017, involving Wayne Coates and a family considering the purchase of a vacant lot on Puntenney Rd., located across the street from the Wiercinski/Coates residence.
According to an email from the prospective buyers, Mr. Coates confronted them, their son, and their architect as they were viewing the property.
• Coates’ Alleged Actions: He “came out of his house and was belligerent and cursing at them,” claiming “nothing was for sale around here.” The potential buyer described him as “verbally abusive and extremely confrontational,” making “rude remarks while cussing” and displaying “extreme aggressive behavior.”
• Impact on the Sale: The confrontation directly caused the potential buyers to withdraw their offer. In their correspondence, they stated:
• Broader Concerns: The incident was seen by some as detrimental to the entire community. Board Director Gregg Arthur noted, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all) not to mention the property owners.”
The Initial Hearing and Decision (January 2019)
The initial hearing focused on whether the HOA had withheld official records of its deliberations or decisions regarding the June 19, 2017 incident.
Petitioner’s Position
Patricia Wiercinski argued that the HOA violated A.R.S. § 33-1805 by failing to produce documents. Her key assertions were:
• Because an email about the incident was sent to a quorum of the Board, the matter constituted official business.
• The Board was legally required to make a formal motion and arrive at a documented decision, even if that decision was to take no action.
• She had never received any such documentation, such as minutes from an executive session or an open meeting.
• She pointed to a Board resolution regarding the electronic storage of documents as evidence that such records must exist.
Respondent’s Position
The HOA, represented by Ashley N. Moscarello, denied any violation. Their defense included:
• The email chain was an informal communication among neighbors and Board members on their personal email servers, not an official HOA record.
• No member had ever requested the Board take official action on the matter.
• The email string was provided voluntarily to the Petitioner.
• The names of the potential buyers and their real estate agent were redacted specifically because “Mr. Coates had a history of bullying and intimidating people.”
• The Board never formally discussed the incident, held a meeting, voted, or took any official action.
• The Community Manager, Kathy Andrews, testified that no official records (agendas, resolutions, minutes, etc.) pertaining to the incident existed.
Outcome and Rationale
The Administrative Law Judge denied the petition. The key conclusions of law were:
• The burden of proof was on the Petitioner to show a violation occurred.
• The simple fact that a quorum of Board members discussed a topic in private emails “does not make it official Board business,” especially when no action is taken.
• Forcing volunteer board members to formally document every informal discussion would be an “unnecessary and burdensome requirement.”
• Because the Petitioner did not establish that any official documents regarding the incident existed, the petition was dismissed.
The Rehearing and Final Decision (May 2019)
Wiercinski requested and was granted a rehearing, alleging “misconduct by the judge.” In this second hearing, she significantly altered her legal argument.
Petitioner’s Evolved Position
Wiercinski abandoned her claim that the Board was required to create a formal record of inaction. Instead, her new theory was:
• The email string itself, having been voluntarily produced by the HOA, must be considered an “official record of the association.”
• As an official record, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted copy.
• She argued that she and Mr. Coates had a right to know the identities of those who had accused him of belligerence.
Respondent’s Defense
The HOA’s defense remained consistent:
• The redaction of names was a necessary and reasonable measure to protect the individuals from potential harassment by Mr. Coates.
• The incident was a personal dispute between neighbors and did not violate any of the HOA’s governing documents (CC&Rs, bylaws), placing it outside the Board’s enforcement authority.
• Kathy Andrews again testified that the email was not part of the association’s archived business records, as the Board took no official action.
Final Outcome and Rationale
The Judge once again dismissed the petition. The final ruling reinforced the initial decision and provided further clarity:
• The email string was definitively not a “record of the association.”
• Because it was not an official record, A.R.S. § 33-1805 did not compel the HOA to provide an un-redacted version.
• The Judge explicitly validated the HOA’s motive for the redactions, stating that the Board President’s fear that “Mr. Coates would harass the real estate agent and potential purchaser… does not appear unreasonable.”
Key Evidence and Testimony
The email communications provided the primary evidentiary basis for the case.
Incriminating Email Content
Several emails from June 20, 2017, highlighted the severity of the incident and concerns about Wayne Coates:
• From Real Estate Agent to Potential Buyer: “He [John Allen] knows this person, Wayne Coates, and said he has been an issue in the neighborhood before. He has contacted Hoamco and is seeking legal [counsel] to stop this menace.”
• From Director Joe Zielinski to the Board: “The YCSO [Yavapai County Sheriff’s Office] may file charges against Wayne for disorderly conduct/harassment… given Wayne’s arrest record and prison term and criminal history. … I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”
• From Director Gregg Arthur to the Board: “I was hoping that this would not be a situation we would have to encounter with Wayne Coates and Patricia however here it is on our door step.”
Definition of “Official Records”
Testimony from Community Manager Kathy Andrews was crucial in establishing the distinction between official and unofficial communications. She defined official records as including:
• Governing documents and architectural guidelines.
• Board and general meeting minutes.
• Expenditures, receipts, contracts, and financials.
• Anything submitted to the Board for official action.
She confirmed that because the Board took no action on the June 19, 2017 incident, the related emails were not included in Respondent’s archived records.
Study Guide – 19F-H1918028-REL
Wiercinski v. Long Meadow Ranch East POA: A Case Study
This study guide provides a comprehensive overview of the administrative case of Patricia Wiercinski versus the Long Meadow Ranch East Property Owners Association, Inc. The case revolves around a homeowner’s request for association records and the legal definition of what constitutes an official document that a homeowners’ association is required to produce under Arizona law. The material is drawn from two Administrative Law Judge Decisions, dated January 22, 2019, and May 1, 2019.
Key Parties and Individuals
Role / Title
Affiliation
Patricia Wiercinski
Petitioner
Homeowner, Member of Respondent
Wayne Coates
Petitioner’s Husband
Homeowner
Long Meadow Ranch East POA, Inc.
Respondent
Homeowners’ Association (HOA)
Diane Mihalsky
Administrative Law Judge (ALJ)
Office of Administrative Hearings
Ashley N. Moscarello, Esq.
Legal Counsel for Respondent
Goodman Law Group
Michael “Mike” Olson
President of the Board
Respondent (HOA)
Gregg Arthur
Director on the Board
Respondent (HOA)
Kathy Andrews
Community Manager
HOAMCO (Respondent’s management company)
John Allen
Property Owner / HOA Member
Long Meadow Ranch East
Joe Zielinski
Director on the Board
Respondent (HOA)
Jim Robertson
Director on the Board
Respondent (HOA)
Tom Reid
Director on the Board
Respondent (HOA)
Boris Biloskirka
Former Board Member
Respondent (HOA)
Timeline of Key Events
June 19, 2017
An incident occurs where Wayne Coates allegedly acts belligerently toward potential buyers of John Allen’s property.
June 20, 2017
An email exchange regarding the incident occurs between John Allen, his realtor, and members of the HOA Board.
October 18, 2018
Patricia Wiercinski files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1805.
January 10, 2019
The initial evidentiary hearing is held before Administrative Law Judge Diane Mihalsky.
January 22, 2019
The ALJ issues a decision denying Wiercinski’s petition.
Post-Jan 22, 2019
Wiercinski requests a rehearing, alleging misconduct by the judge. The request is granted.
April 22, 2019
The rehearing is held.
May 1, 2019
The ALJ issues a final decision, again dismissing Wiercinski’s petition.
The Core Dispute: The June 19, 2017 Incident
On June 19, 2017, potential buyers, along with their builder, architect, and son, were viewing a lot for sale owned by John Allen on Puntenney Rd. The lot was across the street from the home of Patricia Wiercinski and Wayne Coates. An elderly man, later identified as Wayne Coates, came out of the house and was allegedly “belligerent and cursing” at the group, telling them nothing was for sale and they should not be snooping around. The potential buyers described the individual as “verbally abusive and extremely confrontational,” displaying “extreme aggressive behavior.” As a result of this encounter, the potential buyers decided to remove the lot from their list of considerations, stating they were seeking a “quiet, peaceful, and neighborly place to retire. Not a place with hostility and confrontation.”
This incident prompted John Allen to contact his realtor and members of the HOA Board, seeking action to prevent such behavior from interfering with future property sales.
The Legal Proceedings
Petitioner’s Argument: Patricia Wiercinski alleged that the HOA (Respondent) violated A.R.S. § 33-1805 by failing to produce documents related to its deliberations, decisions, and actions regarding the June 19, 2017 incident. Her core arguments were:
• The email about the incident was sent to a quorum of the Board, making it official business.
• The Board was required to make a formal motion and decision, even if it decided to take no action against her husband.
• She never received documents showing the Board addressed the incident in an executive session or open meeting.
• She did not receive a map referenced in one of the emails or a letter mentioned by board member Joe Zielninski in a video.
• An HOA resolution to electronically store all association business documents meant the requested records must exist.
Respondent’s Argument: The HOA denied violating any statute. Its defense was based on the following points:
• The Board never took any official action against Wiercinski or Coates as a result of the incident.
• The email string was an informal communication among Board Directors on their personal servers and was not kept as an official record. It was provided to Wiercinski voluntarily.
• The names of the potential purchasers and real estate agent were redacted from the emails because Wayne Coates has a known history of “threatening and bullying neighbors and others.”
• No official discussion or vote on the incident ever occurred in an executive session or general meeting.
ALJ’s Decision (January 22, 2019): The Administrative Law Judge denied the petition. The decision concluded that Wiercinski did not meet her burden of proof to establish that any official documents regarding the incident existed that the Respondent failed to produce. The judge reasoned that the mere fact a quorum of Board members informally discusses a topic in private emails does not make it official Board business, especially when no action is taken.
Reason for Rehearing: Wiercinski requested a rehearing, alleging misconduct by the judge. The Commissioner of the Department of Real Estate granted the request without noting any specific misconduct or stating why it should have changed the result.
Petitioner’s Changed Argument: At the rehearing, Wiercinski changed her theory of the case. She no longer argued that the Board failed to produce a record of a formal decision. Instead, she argued that:
• The email string itself was an official record of the association’s business.
• A.R.S. § 33-1805 therefore required the HOA to produce a fully un-redacted copy of the emails.
• She and Mr. Coates had a right to know the names of the individuals accusing Mr. Coates of belligerence.
Respondent’s Rebuttal: The HOA maintained its position:
• The email string was not an official record because the Board never took any action on the matter. The incident did not violate any of the HOA’s CC&Rs, bylaws, or anything else it was empowered to enforce.
• Community Manager Kathy Andrews testified that official records include governing documents, minutes, and items submitted to the Board for action. Since the Board took no action, the email was not included in the association’s archived records.
• The names were redacted because of Mr. Coates’s history of intimidation, and the Board president feared he would harass the individuals involved.
ALJ’s Final Decision (May 1, 2019): The petition was dismissed again. The ALJ reaffirmed that the email string was not a “record of the association.” Therefore, A.R.S. § 33-1805(A) did not require the Respondent to provide an un-redacted version to the Petitioner. The judge also noted that the fear of harassment by Mr. Coates, which prompted the redactions, “does not appear unreasonable.”
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Answer the following questions in 2-3 sentences based on the information provided in the case documents.
1. What specific event on June 19, 2017, initiated the legal dispute?
2. What Arizona statute did Patricia Wiercinski claim the HOA violated, and what does that statute generally require?
3. Why did the HOA state it redacted names from the email chain it provided to Wiercinski?
4. In the initial hearing, what did Wiercinski argue the HOA Board was required to do even if it decided to take no action on the incident?
5. How did Wiercinski’s primary legal argument change between the first hearing and the rehearing?
6. Who is Kathy Andrews, and what was her testimony regarding the HOA’s official records?
7. Did the HOA Board ever hold a formal meeting or take an official vote regarding the incident involving Wayne Coates?
8. According to the ALJ, does an informal email discussion among a quorum of board members automatically constitute “official Board business”?
9. What was the final ruling in the case after the rehearing?
10. What reason did HOA President Mike Olson give for the Board not taking official action on the June 19, 2017 incident?
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Answer Key
1. The event was an alleged confrontation where Wayne Coates was belligerent and verbally abusive toward potential buyers who were viewing a property for sale across the street from his home. This encounter caused the buyers to lose interest in the property.
2. Wiercinski claimed the HOA violated A.R.S. § 33-1805. This statute requires that all financial and other records of a homeowners’ association be made reasonably available for examination by any member.
3. The HOA stated it redacted the names of the potential purchasers and their real estate agent due to Wayne Coates’s history of “threatening and bullying neighbors and others.” Board President Mike Olson testified he feared Mr. Coates would harass the individuals if their identities were revealed.
4. In the initial hearing, Wiercinski argued that the Board was required to make a formal motion and arrive at a formal, documented decision even if it decided it was not going to take any action against her husband.
5. In the rehearing, Wiercinski’s argument shifted from claiming the HOA failed to produce a record of a decision to arguing the email string itself was an official record. She then demanded that the HOA provide a fully un-redacted version of this email string.
6. Kathy Andrews is the community manager for the HOA, employed by the management company Hoamco. She testified that the association’s official records include items like governing documents, meeting minutes, and anything submitted to the Board for action, and that the email was not an official record because the Board took no action.
7. No. Testimony from multiple witnesses, including Mike Olson and Gregg Arthur, confirmed that the Board never discussed the incident at an executive meeting or general membership meeting and never voted or took any official action as a result of the incident.
8. No. The ALJ’s decision states that the mere fact a quorum of Board members discusses a topic does not make it official Board business, especially if they do not take any action to make it so.
9. The final ruling was that the Petitioner’s petition was dismissed. The ALJ found that the email string was not an official record of the association, so the HOA was not required by law to provide an un-redacted version.
10. Mike Olson testified that the Board never voted to take any action because the alleged incident did not violate the Respondent’s CC&Rs, bylaws, or anything else that the HOA was authorized or empowered to enforce.
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Essay Questions
1. Analyze the distinction made by the Administrative Law Judge between informal discussions among board members and “official Board business.” How did this distinction shape the outcome of both hearings?
2. Discuss the evolution of Patricia Wiercinski’s legal strategy from the initial hearing to the rehearing. Was the change in argument effective, and why or why not?
3. Examine the roles of A.R.S. § 33-1805 and A.R.S. § 33-1804 in this case. Explain how the Petitioner and Respondent interpreted these statutes differently and how the Administrative Law Judge ultimately applied them.
4. Based on the testimony of Mike Olson and Kathy Andrews, describe the HOA’s official position on record-keeping and its justification for not treating the email string as an official document.
5. Evaluate the Respondent’s decision to redact the names of non-members from the email string. What reasons were given for this action, and how did the Administrative Law Judge view this justification in the final ruling?
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Glossary
• Administrative Law Judge (ALJ): The impartial judge who presides over administrative hearings, hears evidence, and makes legal decisions. In this case, the ALJ was Diane Mihalsky.
• A.R.S. § 33-1805(A): An Arizona Revised Statute cited in the case which provides that “all financial and other records of the association shall be made reasonably available for examination by any member.”
• A.R.S. § 33-1804(E)(4): An Arizona Revised Statute cited in the case which provides that any quorum of the board of directors that meets informally to discuss association business must comply with open meeting and notice provisions.
• Homeowners’ Association (HOA): An organization in a subdivision, planned community, or condominium building that makes and enforces rules for the properties and its residents. In this case, the Long Meadow Ranch East Property Owners Association, Inc.
• Petitioner: The party who files a petition to initiate a legal proceeding. In this case, Patricia Wiercinski.
• Preponderance of the Evidence: The standard of proof required in this administrative hearing. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the “most convincing force.”
• Quorum: The minimum number of members of a deliberative assembly (such as a board of directors) necessary to conduct the business of that group. The petitioner argued that because a quorum of the board was included on the emails, the discussion constituted official business.
• Respondent: The party against whom a petition is filed. In this case, the Long Meadow Ranch East Property Owners Association, Inc.
Blog Post – 19F-H1918028-REL
4 Shocking Lessons from an HOA Lawsuit About a “Nightmare Neighbor”
Introduction: Behind the Closed Doors of the HOA Board
Many people live in communities governed by a Homeowners’ Association (HOA), navigating the rules and paying the dues as part of modern suburban life. But what happens when a serious dispute between neighbors erupts? What if one resident’s behavior is so aggressive that it costs another the sale of their property? A real-life administrative law case from Prescott, Arizona, provides a rare and fascinating look into the messy reality of HOA governance. The lawsuit, filed by a homeowner against her HOA for allegedly withholding records, reveals surprising truths about what constitutes “official business” and the real-world limits of an HOA’s power.
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1. Not All HOA Talk is “Official Business”—Even When the Whole Board Is In on It.
The case centered on a dramatic incident. A homeowner’s husband, Wayne Coates, was accused of being “belligerent and cursing” at potential buyers viewing a lot across the street, causing them to back out of the sale. The distressed property seller, John Allen, emailed an HOA board member, Gregg Arthur, who then forwarded the complaint to the entire board. The petitioner, Mr. Coates’ wife, argued that this email chain was an official HOA record.
Her argument rested on a profound misunderstanding of board governance that many residents likely share: she claimed the board was legally required to make a motion and arrive at a formal decision even if it decided to do nothing. The administrative law judge firmly rejected this idea. The emails were deemed informal, private communications, not official records.
The judge clarified that “official business” is triggered when a board moves toward a formal decision or action that would bind the association, such as spending funds, issuing a violation, or changing a rule. These emails were purely informational and investigatory, never reaching that threshold. This distinction is a cornerstone of volunteer board governance, as it protects boards from being paralyzed by procedure. The judge’s decision powerfully refutes the notion that boards must formally document every issue they choose not to pursue:
the mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business. Any other result would impose an unnecessary and burdensome requirement on volunteers who are not compensated for their time who are may be neighbors and who may also be friends, in addition to being Board members.
2. A Neighbor’s Behavior Can Kill a Property Sale, and Your HOA Might Be Powerless.
The impact of Mr. Coates’ alleged actions was immediate and severe. The potential buyers, seeking a peaceful retirement, were so shaken by the confrontation that they explicitly withdrew their interest in the property.
An email from the potential buyer, submitted as evidence, vividly illustrates the direct financial consequence of the neighbor’s behavior:
In closing when we returned one thing that stands out is would we want to live next to this type of behavior of [a] neighbor? The answer is no, this lot was one that we had in our top 2 Lots as a consideration for purchase but due to the volatile potential of this man, we have decided at this point to remove it from our list.
Despite the clear harm to a member, the HOA concluded it could not intervene. According to testimony, Community Manager Kathy Andrews explained that the HOA had “no authority to become involved in a personal dispute between neighbors.” Further, Board President Mike Olson testified that the incident did not violate any specific CC&Rs or bylaws the board was empowered to enforce. This highlights a counter-intuitive reality for many homeowners: not all bad neighbor behavior falls under an HOA’s jurisdiction, even when it negatively affects property sales. However, while the HOA was powerless, the situation was not a dead end for the seller, who court records show did eventually sell his lot to someone else.
3. Transparency Has Limits, Especially When a Resident Is Seen as a Threat.
The petitioner demanded an un-redacted copy of the emails, wanting to know exactly who was accusing her husband. The HOA refused, redacting the names of the potential buyers and their real estate agent.
The reason, according to sworn testimony from HOA President Mike Olson, was that Mr. Coates had a “history of threatening and bullying neighbors and others.” This case highlights the inherent tension between a member’s right to information and the board’s fiduciary duty to protect individuals from harm. While members have a right to access official records, that right is not absolute.
The judge validated the board’s exercise of its duty of care, finding its rationale for the redactions to be sound. In a moment of legal irony, the judge noted that the board’s fear was reasonable, “especially given Mr. Coates’ role in causing Petitioner to prosecute this petition at the original hearing and rehearing.” In effect, the petitioner’s own aggressive pursuit of the case in court helped to legally justify the board’s initial decision to protect identities from her husband.
4. Suing Your HOA Can Put Your Own Dirty Laundry on Display.
Perhaps the greatest irony of the lawsuit is what it ultimately accomplished. In her quest to obtain what she believed were improperly withheld documents, the petitioner’s legal action placed deeply unflattering information about her husband directly into the public record for anyone to see.
Emails submitted as evidence contained damaging statements, including an email from board member Joe Zielinski that is now a permanent part of the court file. It contained severe allegations that went far beyond the initial incident.
The YCSO [Yavapai County Sheriff’s Office] may file charges against Wayne for disorderly conduct/harassment, based on what happened to Mr. Allan and the others in attendance, given Wayne’s arrest record and prison term and criminal history. . . . I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.
This serves as a powerful “be careful what you wish for” lesson in HOA litigation. The lawsuit, intended to hold the HOA accountable, permanently enshrined the allegations about her husband’s “arrest record and prison term” in the public court record—the very opposite of the privacy and vindication the petitioner was likely seeking.
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Conclusion: The Fine Line Between Community and Controversy
This case peels back the curtain on the complex world of volunteer-run HOAs. It demonstrates that the line between an informal discussion among neighbors and official, actionable HOA business is finer and more consequential than most residents assume. It shows that an HOA’s power has clear limits and that a board’s duty to protect individuals can sometimes override demands for total transparency. It makes you wonder: when you see a problem in your neighborhood, is it truly the HOA’s business to solve, or is it a personal dispute between neighbors?
Case Participants
Petitioner Side
Patricia Wiercinski(petitioner) Appeared on her own behalf
Wayne Coates(petitioner's husband) Central figure in the June 19, 2017 incident
Respondent Side
Ashley N. Moscarello(HOA attorney) Goodman Law Group Represented Respondent
Michael Olson(board president, witness) President of Respondent's board; testified at hearing and rehearing
Gregg Arthur(board director, witness) Director on Respondent's board; testified at hearing
Kathy Andrews(property manager, witness) HOAMCO Respondent's community manager; employed by HOAMCO; testified at hearing and rehearing
John Allen(member/complainant) Owner trying to sell property across the street from Petitioner; member of Respondent
Jim Robertson(board director) Director on Respondent's board
Joe Zielinski(board director, witness) Director on Respondent's board; mentioned conversation with YCSO deputy
Tom Reid(board director) Director on Respondent's board
Boris Biloskirka(former board member) Recipient of emails; identified as a former Board member
Josh(compliance officer) Referenced in emails regarding compliance inspections
Neutral Parties
Diane Mihalsky(ALJ) Administrative Law Judge
Shelia Polk(head prosecutor) Head of the office Joe Zielinski sought to contact regarding Wayne Coates
YCSO’s deputy(deputy) Yavapai County Sheriff’s Office Conversed with Joe Zielinski regarding the incident
Judy Lowe(commissioner) Arizona Department of Real Estate Commissioner of the Arizona Department of Real Estate
Felicia Del Sol(administrative staff) Transmitted decision electronically
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1818052-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-01-17
Administrative Law Judge
Thomas Shedden
Outcome
none
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Lawrence M. Stewart
Counsel
—
Respondent
Canyon Gate Condominium Association, Inc.
Counsel
Nicolas C. S. Nogami, Esq.
Alleged Violations
Bylaws section 5.4
Outcome Summary
The Administrative Law Judge dismissed the petition filed by homeowner Lawrence M. Stewart against Canyon Gate Condominium Association, Inc., finding that the Petitioner failed to prove the Association violated its Bylaws concerning good faith in denying his request for a variance.
Why this result: The Petitioner failed to meet the burden of proof, as Bylaws Section 5.4 was determined to be a shield protecting the Board from liability rather than a provision imposing a duty of good faith that could be violated by denying a variance.
Key Issues & Findings
Alleged failure of the HOA Board to act in good faith when denying a variance request
Petitioner alleged the Board failed to act in good faith when denying his request for a variance to changes he made, and asserted bias and unfair treatment. The ALJ concluded that Section 5.4 acts as a shield from liability for Board members, not a duty imposed upon them, and Petitioner failed to meet the burden of proof.
Orders: Petitioner Lawrence M. Stewart's petition is dismissed. Respondent is deemed to be the prevailing party in this matter.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
ARIZ. REV. STAT. section 32-2199.02(B)
Analytics Highlights
Topics: HOA governance, bylaw violation, good faith, variance denial, board liability
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Stewart v. Canyon Gate Condominium Association, Inc.
Executive Summary
This document synthesizes the findings and conclusions from an administrative legal case involving Petitioner Lawrence M. Stewart and Respondent Canyon Gate Condominium Association, Inc. The core of the dispute revolves around Mr. Stewart’s unauthorized modifications to a common area, for which the Association’s Board of Directors denied a retroactive variance. Mr. Stewart alleged the Board violated its bylaws by acting in bad faith, that a specific Board member was biased against him, and that he was subjected to unfair treatment compared to other homeowners.
The Administrative Law Judge, in both an initial hearing and a subsequent rehearing, consistently ruled against Mr. Stewart. The judge determined that the specific bylaw cited (Section 5.4) was an indemnification clause that shields the Board from liability and does not impose a duty of action. Crucially, Mr. Stewart failed to meet the legal burden of proving his claims by a “preponderance of the evidence.” The Board’s rationale for the denial—to avoid setting a precedent, or “opening a Pandora’s Box”—was deemed a reasonable position for a condominium association. Evidence presented to support claims of bias and unequal treatment was found to be insufficient or not probative. Ultimately, Mr. Stewart’s petition was dismissed in its entirety.
Case Overview
This matter, designated as No. 18F-H1818052-REL, was adjudicated by the Office of Administrative Hearings under the authority of the Arizona Department of Real Estate. The case centered on a petition filed by Mr. Stewart on May 21, 2018, alleging a violation of the Association’s Bylaws by the Board of Directors.
Parties Involved
Name / Entity
Representation
Petitioner
Lawrence M. Stewart
On his own behalf
Respondent
Canyon Gate Condominium Association, Inc.
Mark K. Sahl, Esq. & Nichols C. S. Nogami, Esq.
Administrative Law Judge Thomas Shedden
Case Chronology
• November 15, 2017: The Association’s counsel informs Mr. Stewart in a letter that he is in violation of section 5.1 of the CC&Rs for making unapproved changes to a common/limited common area.
• Post-November 15, 2017: Mr. Stewart, then a member of the Board, requests a variance for the changes.
• December 27, 2017: The Association’s attorney sends a letter stating an understanding that Mr. Stewart had recused himself and that the other two Board members (Sandra Fernandez and David Larson) had required the area to be restored.
• January 4, 2018: Mr. Stewart writes to the other Board members, refuting that he had agreed to recuse himself and requesting a formal meeting to consider his variance request.
• February 18, 2018: At a Board meeting, Mr. Stewart resigns from the Board. The remaining two members vote to deny his variance request and require him to restore the area to its original condition.
• May 21, 2018: Mr. Stewart files his petition with the Arizona Department of Real Estate.
• September 6, 2018: The initial administrative hearing is conducted.
• September 14, 2018: The Administrative Law Judge (ALJ) issues a decision dismissing Mr. Stewart’s petition.
• January 2, 2019: A rehearing is conducted.
• January 17, 2019: The ALJ issues a final decision following the rehearing, again dismissing the petition.
Petitioner’s Central Allegations
Mr. Stewart’s case rested on four primary claims against the Association’s Board.
1. Violation of Bylaws Section 5.4
The formal petition alleged a violation of Association Bylaws Article V, Section 5.4 (Liability), which states in part:
“So long as he/she has acted in good faith on the basis of information actually possessed, neither the Board nor any member of the Board nor any officer of the ASSOCIATION shall be liable to the ASSOCIATION, any OWNER, or to any other party for any damage, loss, or prejudice suffered or claimed on account of: (i) the approval or disapproval of any plans, drawings, or specifications, whether or not defective…or (v) any act or failure to act by the ASSOCIATION, or Board.”
Mr. Stewart cited this section because it was the only part of the governing documents he could find that included a “good faith” requirement.
2. Lack of Good Faith by the Board
Mr. Stewart asserted that the Board did not act in good faith when it denied his variance request. He based this claim on several points:
• He resigned from the Board during the February 18, 2018 meeting because he “got the sense ‘right away’ that the other Board members’ minds were made up and that they would not approve his request.”
• He presented unrebutted testimony that the Board members were unwilling to physically look at the changes he had made and only gave a “cursory look” at photographs he provided.
• The Board’s decision appeared to have been made prior to the meeting, as evidenced by the attorney’s December 27, 2017 letter which erroneously stated he had recused himself.
3. Bias of Board Member David Larson
A significant portion of Mr. Stewart’s argument was that Board member David Larson was personally biased against him. The evidence presented to support this included:
• Initial Hearing Evidence:
◦ A biography of Mr. Larson prepared by the property manager. When questioned, Mr. Stewart could not identify specific information showing bias but stated the “entire document coupled with the other statements shows a bias.”
◦ Notes from a November 28, 2017 Board meeting where Mr. Larson informed members that enforcement actions (towing, violation notices) would begin immediately and that he was “too busy to talk to people about Board business in driveways.”
• Rehearing Evidence:
◦ A letter dated October 3, 2018, from Mr. Larson to Association members urging them not to vote for Mr. Stewart in an upcoming election.
4. Unfair and Unequal Treatment
Mr. Stewart claimed he was treated unfairly because other units in the condominium were also not in conformity with the CC&Rs.
• He presented photos of units he believed were out of compliance.
• He testified that he had verified with the Association that none of these units had received a variance in the last two years.
• However, he acknowledged he did not know if variances had been granted more than two years prior or if the changes had received pre-approval, which would not require a variance.
Respondent’s Position and Legal Arguments
The Canyon Gate Condominium Association, represented by counsel, did not present witnesses but argued on legal grounds.
• Inapplicability of Bylaws Section 5.4: The Association’s core argument was that Section 5.4 was not applicable to Mr. Stewart’s complaint. They contended the section is an indemnification clause designed to act as a “shield” to protect Board members from liability when they act in good faith, not a “sword” that imposes an affirmative duty on them that can be violated.
• Reasonableness of Board Decision: The Association maintained that the Board’s decision was reasonable. According to Mr. Stewart’s own testimony, the Board’s basis for denial was the fear that granting his variance would “open a Pandora’s Box where other unit owners would request variances.”
Administrative Law Judge’s Rulings and Conclusions
The ALJ’s decisions in both the initial hearing and the rehearing were consistent, ultimately finding in favor of the Respondent.
Legal Framework
• Burden of Proof: The ALJ established that Mr. Stewart, as the petitioner, bore the burden of proof. The standard of proof was a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”
• Board’s Duty: The judge noted that while the Bylaws are a contract, the Association, in exercising its authority, must “act reasonably.”
Analysis of Bylaws Section 5.4
• The judge agreed entirely with the Association’s interpretation, concluding that Section 5.4 “does not impose any duty on the Board members, but rather merely shields them from liability if they act in good faith.”
• In the initial hearing, the judge noted Mr. Stewart “appeared to acknowledge that section 5.4 acts as a ‘shield’ and not a ‘sword.'”
• By the rehearing, this was solidified, with the finding that “Mr. Stewart acknowledges that the Association has not violated Bylaws Section 5.4.”
Assessment of ‘Good Faith’ and Bias Claims
• The ALJ concluded that even if Section 5.4 were applicable, Mr. Stewart “has not shown by a preponderance of the evidence that the Board did not act in good faith, that it had a bias against him, or that it treated him unfairly.”
• The judge found the Board’s reasoning for the denial—the “Pandora’s Box” concern—was “not an unreasonable position for the Board of a condominium association.”
• Given this reasoning, the judge stated that “the specifics of the changes Mr. Stewart made would not be germane to the decision,” thereby neutralizing the claim that the Board failed to properly inspect the modifications.
Evaluation of Unfair Treatment Claim
• The evidence of other non-compliant units was deemed “not probative of the issue at hand.”
• The judge reasoned that there was “no evidence to show that they had requested that the Board grant variances,” meaning their situations were not comparable to Mr. Stewart’s, who had made unapproved changes and was subsequently denied a variance.
Final Disposition
• Initial Decision (September 14, 2018): IT IS ORDERED that Petitioner Lawrence M. Stewart’s petition is dismissed. This order was subject to a request for rehearing within 30 days.
• Rehearing Decision (January 17, 2019): IT IS ORDERED that Petitioner Lawrence M. Stewart’s petition is dismissed. This final order was noted as binding on the parties, with any further appeal requiring judicial review filed with the superior court within 35 days.
Study Guide – 18F-H1818052-REL-RHG
Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.
This guide provides a review of the administrative case Lawrence M. Stewart, Petitioner, vs. Canyon Gate Condominium Association, Inc., Respondent (No. 18F-H1818052-REL), including the initial hearing and a subsequent rehearing.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the provided case documents.
1. What action by Petitioner Lawrence M. Stewart initiated the dispute with the Canyon Gate Condominium Association?
2. What specific provision of the Association Bylaws did Mr. Stewart allege was violated in his petition?
3. Why did Mr. Stewart resign from the Association’s Board during the February 18, 2018 meeting?
4. What was the Board’s stated reason for denying Mr. Stewart’s request for a variance?
5. Explain the legal interpretation of Bylaws Section 5.4 as a “shield” and not a “sword.”
6. List two pieces of evidence Mr. Stewart presented at the initial hearing to support his claim that Board member David Larson was biased against him.
7. What was the legal standard of proof in this case, and which party was required to meet it?
8. How did Mr. Stewart attempt to prove he was being treated unfairly in comparison to other unit owners, and why did the judge find this evidence unconvincing?
9. At the rehearing, what new evidence did Mr. Stewart present regarding Mr. Larson’s alleged bias?
10. What was the final outcome of both the initial administrative hearing and the subsequent rehearing?
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Answer Key
1. Mr. Stewart initiated the dispute by making changes to the common area and/or limited common area around his unit without first receiving permission from the Association. The Association informed him in a letter dated November 15, 2017, that this was a violation of section 5.1 of the CC&Rs.
2. Mr. Stewart alleged in his petition that the Association violated Bylaws Section 5.4. He later acknowledged this section was not technically violated but cited it because it was the only provision in the governing documents he could find that included a “good faith” requirement.
3. Mr. Stewart resigned from the Board because he “got the sense ‘right away’ that the other Board members’ minds were made up” and that they would not approve his request for a variance, regardless of the details.
4. The Board denied Mr. Stewart’s request on the basis that approving it would “open a Pandora’s Box” where other unit owners would then also request variances. The Administrative Law Judge found this was not an unreasonable position for a condominium association board to take.
5. The interpretation of Section 5.4 is that it acts as a “shield” to protect, or indemnify, Board members from liability for damages, loss, or prejudice, provided they have acted in good faith. It is not a “sword” that imposes an affirmative duty on the Board that Mr. Stewart could use to compel a certain action or claim a violation.
6. At the initial hearing, Mr. Stewart presented two of the following: (1) a biography of Mr. Larson; (2) notes from a November 28, 2017 meeting where Mr. Larson stated that enforcement actions would begin immediately; and (3) a letter from the Association’s attorney that erroneously stated Mr. Stewart had recused himself, suggesting the matter was decided without him.
7. The standard of proof was a “preponderance of the evidence.” The burden of proof rested entirely on the petitioner, Mr. Stewart, to show that the Association had acted improperly.
8. Mr. Stewart presented testimony and photos of other units that he believed were not in conformity with the CC&Rs. The judge found this evidence was not probative because Mr. Stewart provided no evidence that those owners had requested and been denied variances, and he acknowledged he did not know if they had received variances more than two years prior or had received preapproval.
9. At the rehearing, Mr. Stewart entered into evidence an October 3, 2018 letter from Mr. Larson to the Association’s members. In this letter, Mr. Larson urged the members not to vote for Mr. Stewart in an upcoming election.
10. In both the initial decision (September 14, 2018) and the decision following the rehearing (January 17, 2019), the Administrative Law Judge ordered that Mr. Stewart’s petition be dismissed. The Respondent, Canyon Gate Condominium Association, Inc., was deemed the prevailing party in the matter.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and legal conclusions from the case documents.
1. Analyze the Administrative Law Judge’s reasoning for concluding that Bylaws Section 5.4 was not applicable to Mr. Stewart’s petition. How did Mr. Stewart’s own testimony during the legal proceedings support this conclusion?
2. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Evaluate the evidence Mr. Stewart presented across both hearings and explain why the judge found it insufficient to meet this standard regarding his claims of bias, bad faith, and unfair treatment.
3. Examine the Canyon Gate Board’s justification for denying the variance request (the “Pandora’s Box” argument). Based on the legal principles cited in the decisions, why was this considered a reasonable position for a condominium association board to take, and why did it render the specifics of Mr. Stewart’s changes non-germane?
4. Trace the procedural timeline of this case from the Association’s initial notice of violation on November 15, 2017, to the final binding order issued on January 17, 2019. Identify the key events, arguments, and decisions at each stage of the administrative process.
5. Mr. Stewart argued that he was treated unfairly because other units were also out of compliance with the CC&Rs. Deconstruct this argument and explain why the judge dismissed this line of reasoning as not being probative to the issue at hand in both the initial hearing and the rehearing.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Thomas Shedden) who presides over hearings at the Office of Administrative Hearings and issues a decision on the matter.
Association
The Canyon Gate Condominium Association, Inc., the entity responsible for enforcing the Bylaws and CC&Rs. In this case, it is the Respondent.
The governing body of the Association, which at the time of the variance request included Lawrence M. Stewart, Sandra Fernandez, and David Larson.
Burden of Proof
The obligation to prove one’s assertion. In this case, the burden of proof was on the Petitioner, Mr. Stewart.
Bylaws
A contract between the Association and its members. The parties are required to comply with its terms, and the Association must act reasonably in exercising its authority under them.
Covenants, Conditions, and Restrictions. Mr. Stewart was found to be in violation of section 5.1 of the CC&Rs for making unapproved changes.
Common Area / Limited Common Area
The property around a condominium unit that is shared or has restricted use. Mr. Stewart made unauthorized changes to this area.
Good Faith
A standard of conduct mentioned in Bylaws Section 5.4. It protects Board members from liability so long as they act in good faith based on information they possess. Mr. Stewart claimed the Board failed to meet this standard.
Indemnification
The act of compensating for loss or damage. Bylaws Article V, which contains Section 5.4, pertains to indemnification.
Petitioner
The party who files a petition initiating a legal case. In this matter, the petitioner was Lawrence M. Stewart.
Preponderance of the Evidence
The standard of proof required in this case, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing granted in a legal matter. A rehearing was conducted on January 2, 2019, after which the judge issued a final, binding order.
Respondent
The party against whom a petition is filed. In this matter, the respondent was Canyon Gate Condominium Association, Inc.
Variance
An official exception or deviation from a rule. Mr. Stewart requested a variance to allow the unapproved changes he had made, which the Board denied.
Blog Post – 18F-H1818052-REL-RHG
A Homeowner Sued His HOA and Lost—The Surprising Reasons Why Might Save You Thousands
Introduction: The Perennial Battle Between Homeowner and HOA
For many homeowners, the relationship with their Homeowners’ Association (HOA) can feel like a constant source of friction. From landscaping rules to paint colors, the potential for disputes is endless. But what happens when a homeowner feels so strongly wronged that they take the ultimate step of suing their association? More importantly, what happens when they lose?
This is the story of a homeowner who was also a board member. After making unauthorized changes to his property, he was denied his request for a variance to approve the changes he had already made. Believing the Board had acted in bad faith, he sued the association. His case failed, not on a minor technicality, but due to fundamental misunderstandings of how HOA law and governing documents function.
This outcome highlights a common, and costly, misconception about HOA governance. We will explore the surprising legal realities revealed in the case of Lawrence M. Stewart vs. Canyon Gate Condominium Association, Inc., offering several crucial takeaways for any homeowner before they decide to challenge their HOA.
1. A “Good Faith” Clause Can Be a Shield, Not a Sword
Mr. Stewart based his entire case on the claim that the Board violated Section 5.4 of the bylaws by not acting in “good faith,” as this was the only section in the governing documents he could find that mentioned the phrase.
This is where the case pivots on a crucial legal distinction. The court found that this clause was not intended to impose a duty on the board that a homeowner could sue over (a “sword”). Instead, its function was to protect board members from liability if they acted in good faith (a “shield”). Legally, this is an indemnification clause. Think of it as a form of insurance, designed to protect volunteer board members from being personally sued for making reasonable decisions, not a weapon for homeowners to attack those decisions.
In his testimony, Mr. Stewart even acknowledged this “shield” versus “sword” distinction but proceeded with the argument anyway. The lesson for homeowners is unequivocal: you must understand the precise legal function of a clause within your governing documents, not just its keywords.
2. The “Pandora’s Box” Defense Is a Powerful Argument
The Board’s primary reason for denying Mr. Stewart’s variance request was its fear that approval “would open a Pandora’s Box where other unit owners would request variances.” While a homeowner might hear “Pandora’s Box” and think it’s a lazy excuse, the court viewed it as the board performing its fundamental duty.
The judge stated this reasoning “was not an unreasonable position for the Board of a condominium association.” This validation is incredibly impactful because it shifts the focus from the merits of one homeowner’s request to the Board’s overarching fiduciary duty to uphold the rules consistently for the entire community. It shows that an HOA’s duty to maintain consistent enforcement and avoid setting a messy precedent is a legally sound basis for a decision, making the specific details of one homeowner’s changes irrelevant.
3. Being on the Board Won’t Give You a Pass
In a surprising twist, Mr. Stewart was a member of the HOA Board at the very time he made the unauthorized changes and requested the variance. This created a clear conflict of interest and ultimately did not help his case.
The situation culminated in Mr. Stewart resigning from the Board during the meeting where his request was considered. He stated he resigned because he felt “the other Board members’ minds were made up” and they would not approve his request. This incident serves as a stark reminder: holding a position on the board does not grant special privileges or exceptions to the rules. In fact, it can complicate personal matters and highlight a direct conflict between a board member’s duties to the association and their personal interests.
4. “Whataboutism” Is Not a Legal Strategy
Like many homeowners in a dispute, Mr. Stewart argued that he was being treated unfairly because other units in the community were also out of compliance with the CC&Rs. This is a common defense, but its legal failure in this case is a masterclass in what courts actually require for proof.
Mr. Stewart’s effort was commendable but legally insufficient. He presented photos of other non-conforming units and even “verified with the Association that none of these units had received a variance in the last two years.” However, his evidence collapsed under cross-examination when he “acknowledged… he did not know if any of these units had received variances more than two years ago or whether preapproval for the changes had been granted.”
The judge dismissed his evidence entirely. This transforms the lesson from a simple “don’t point fingers” to a much more sophisticated legal principle: to prove selective enforcement, you must prove others in the identical procedural situation were treated differently, and incomplete evidence is no evidence at all.
5. The Burden of Proof Is Everything
Perhaps the most stunning fact from the case is that the Association “presented no witnesses” at either the initial hearing or the subsequent rehearing. They won the case without putting a single person on the stand to testify.
They could do this because the legal system placed the “burden of proof” squarely on Mr. Stewart. As the petitioner, it was his job to prove his claims of bad faith, bias, and unfair treatment by a “preponderance of the evidence.” The Association didn’t have to prove it acted in good faith; Mr. Stewart had to prove it acted in bad faith. He failed to meet this standard. In other words, he had to prove that his claims were more likely to be true than not—even if only by a 51% to 49% margin.
The court document formally defines this legal standard as:
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.
In a legal dispute with your HOA, the case is not about who is morally right or wrong. It’s about who can meet their required burden of proof with convincing, relevant evidence.
Conclusion: Know the Rules Before You Fight the Rulers
The case of Lawrence M. Stewart is a cautionary tale that every homeowner should internalize. His failed lawsuit, which likely became a five-figure mistake when factoring in legal fees for both sides, underscores that HOA governing documents are a binding contract. Challenging the Board requires more than a sense of unfairness. It demands a precise, evidence-backed legal argument that aligns with the specific terms of that contract and the applicable legal standards.
Before you declare war on your HOA, ask yourself: are you prepared to prove your case with irrefutable evidence, or are you just banking on a feeling of being wronged?
Case Participants
Petitioner Side
Lawrence M. Stewart(petitioner) Also served as a Board member for Respondent until resigning during the variance request consideration.
Respondent Side
Mark K. Sahl(attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent in the initial hearing.
Nicolas C. S. Nogami(attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent in both the initial hearing (listed as 'Nichols C. S. Nogami') and the rehearing.
Sandra Fernandez(board member) Canyon Gate Condominium Association, Inc. Voted to deny Petitioner's variance request.
David Larson(board member) Canyon Gate Condominium Association, Inc. Voted to deny Petitioner's variance request; Petitioner alleged he was biased.
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Recipient of the decision copies.
F. Del Sol(administrative staff) Office of Administrative Hearings Signed the transmission of the decision copies.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1818052-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-01-17
Administrative Law Judge
Thomas Shedden
Outcome
loss
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Lawrence M. Stewart
Counsel
—
Respondent
Canyon Gate Condominium Association, Inc.
Counsel
Nicolas C. S. Nogami
Alleged Violations
Association Bylaws section 5.4
Outcome Summary
The Administrative Law Judge dismissed Petitioner Lawrence M. Stewart's petition and deemed the Respondent, Canyon Gate Condominium Association, Inc., to be the prevailing party.
Why this result: Petitioner failed to prove the Association violated Bylaws Section 5.4 or acted unreasonably or in bad faith when denying his request for a variance. The Bylaw section cited was determined to be a liability shield for the Board, not a source of duty owed to the homeowner.
Key Issues & Findings
Alleged failure of HOA Board to act in good faith when denying Petitioner's request for a variance for unauthorized common area changes
Petitioner made changes to the common area without permission and the Board denied his subsequent request for a variance. Petitioner alleged the Board violated Bylaws Section 5.4 by failing to act in good faith and showing bias. The ALJ found that Section 5.4 is a liability shield for the Board, not a duty imposed upon them, and Petitioner failed to meet the burden of proof to show bad faith or unreasonableness.
Orders: Petitioner Lawrence M. Stewart’s petition is dismissed. Respondent is deemed to be the prevailing party in this matter.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Analytics Highlights
Topics: HOA governance, variance denial, common area modifications, good faith requirement, board liability shield, prevailing party
Additional Citations:
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Briefing Document: Stewart v. Canyon Gate Condominium Association, Inc.
Executive Summary
This document synthesizes the findings and conclusions from an administrative legal case involving Petitioner Lawrence M. Stewart and Respondent Canyon Gate Condominium Association, Inc. The core of the dispute revolves around Mr. Stewart’s unauthorized modifications to a common area, for which the Association’s Board of Directors denied a retroactive variance. Mr. Stewart alleged the Board violated its bylaws by acting in bad faith, that a specific Board member was biased against him, and that he was subjected to unfair treatment compared to other homeowners.
The Administrative Law Judge, in both an initial hearing and a subsequent rehearing, consistently ruled against Mr. Stewart. The judge determined that the specific bylaw cited (Section 5.4) was an indemnification clause that shields the Board from liability and does not impose a duty of action. Crucially, Mr. Stewart failed to meet the legal burden of proving his claims by a “preponderance of the evidence.” The Board’s rationale for the denial—to avoid setting a precedent, or “opening a Pandora’s Box”—was deemed a reasonable position for a condominium association. Evidence presented to support claims of bias and unequal treatment was found to be insufficient or not probative. Ultimately, Mr. Stewart’s petition was dismissed in its entirety.
Case Overview
This matter, designated as No. 18F-H1818052-REL, was adjudicated by the Office of Administrative Hearings under the authority of the Arizona Department of Real Estate. The case centered on a petition filed by Mr. Stewart on May 21, 2018, alleging a violation of the Association’s Bylaws by the Board of Directors.
Parties Involved
Name / Entity
Representation
Petitioner
Lawrence M. Stewart
On his own behalf
Respondent
Canyon Gate Condominium Association, Inc.
Mark K. Sahl, Esq. & Nichols C. S. Nogami, Esq.
Administrative Law Judge Thomas Shedden
Case Chronology
• November 15, 2017: The Association’s counsel informs Mr. Stewart in a letter that he is in violation of section 5.1 of the CC&Rs for making unapproved changes to a common/limited common area.
• Post-November 15, 2017: Mr. Stewart, then a member of the Board, requests a variance for the changes.
• December 27, 2017: The Association’s attorney sends a letter stating an understanding that Mr. Stewart had recused himself and that the other two Board members (Sandra Fernandez and David Larson) had required the area to be restored.
• January 4, 2018: Mr. Stewart writes to the other Board members, refuting that he had agreed to recuse himself and requesting a formal meeting to consider his variance request.
• February 18, 2018: At a Board meeting, Mr. Stewart resigns from the Board. The remaining two members vote to deny his variance request and require him to restore the area to its original condition.
• May 21, 2018: Mr. Stewart files his petition with the Arizona Department of Real Estate.
• September 6, 2018: The initial administrative hearing is conducted.
• September 14, 2018: The Administrative Law Judge (ALJ) issues a decision dismissing Mr. Stewart’s petition.
• January 2, 2019: A rehearing is conducted.
• January 17, 2019: The ALJ issues a final decision following the rehearing, again dismissing the petition.
Petitioner’s Central Allegations
Mr. Stewart’s case rested on four primary claims against the Association’s Board.
1. Violation of Bylaws Section 5.4
The formal petition alleged a violation of Association Bylaws Article V, Section 5.4 (Liability), which states in part:
“So long as he/she has acted in good faith on the basis of information actually possessed, neither the Board nor any member of the Board nor any officer of the ASSOCIATION shall be liable to the ASSOCIATION, any OWNER, or to any other party for any damage, loss, or prejudice suffered or claimed on account of: (i) the approval or disapproval of any plans, drawings, or specifications, whether or not defective…or (v) any act or failure to act by the ASSOCIATION, or Board.”
Mr. Stewart cited this section because it was the only part of the governing documents he could find that included a “good faith” requirement.
2. Lack of Good Faith by the Board
Mr. Stewart asserted that the Board did not act in good faith when it denied his variance request. He based this claim on several points:
• He resigned from the Board during the February 18, 2018 meeting because he “got the sense ‘right away’ that the other Board members’ minds were made up and that they would not approve his request.”
• He presented unrebutted testimony that the Board members were unwilling to physically look at the changes he had made and only gave a “cursory look” at photographs he provided.
• The Board’s decision appeared to have been made prior to the meeting, as evidenced by the attorney’s December 27, 2017 letter which erroneously stated he had recused himself.
3. Bias of Board Member David Larson
A significant portion of Mr. Stewart’s argument was that Board member David Larson was personally biased against him. The evidence presented to support this included:
• Initial Hearing Evidence:
◦ A biography of Mr. Larson prepared by the property manager. When questioned, Mr. Stewart could not identify specific information showing bias but stated the “entire document coupled with the other statements shows a bias.”
◦ Notes from a November 28, 2017 Board meeting where Mr. Larson informed members that enforcement actions (towing, violation notices) would begin immediately and that he was “too busy to talk to people about Board business in driveways.”
• Rehearing Evidence:
◦ A letter dated October 3, 2018, from Mr. Larson to Association members urging them not to vote for Mr. Stewart in an upcoming election.
4. Unfair and Unequal Treatment
Mr. Stewart claimed he was treated unfairly because other units in the condominium were also not in conformity with the CC&Rs.
• He presented photos of units he believed were out of compliance.
• He testified that he had verified with the Association that none of these units had received a variance in the last two years.
• However, he acknowledged he did not know if variances had been granted more than two years prior or if the changes had received pre-approval, which would not require a variance.
Respondent’s Position and Legal Arguments
The Canyon Gate Condominium Association, represented by counsel, did not present witnesses but argued on legal grounds.
• Inapplicability of Bylaws Section 5.4: The Association’s core argument was that Section 5.4 was not applicable to Mr. Stewart’s complaint. They contended the section is an indemnification clause designed to act as a “shield” to protect Board members from liability when they act in good faith, not a “sword” that imposes an affirmative duty on them that can be violated.
• Reasonableness of Board Decision: The Association maintained that the Board’s decision was reasonable. According to Mr. Stewart’s own testimony, the Board’s basis for denial was the fear that granting his variance would “open a Pandora’s Box where other unit owners would request variances.”
Administrative Law Judge’s Rulings and Conclusions
The ALJ’s decisions in both the initial hearing and the rehearing were consistent, ultimately finding in favor of the Respondent.
Legal Framework
• Burden of Proof: The ALJ established that Mr. Stewart, as the petitioner, bore the burden of proof. The standard of proof was a “preponderance of the evidence,” defined as evidence with “the most convincing force” that is sufficient “to incline a fair and impartial mind to one side of the issue rather than the other.”
• Board’s Duty: The judge noted that while the Bylaws are a contract, the Association, in exercising its authority, must “act reasonably.”
Analysis of Bylaws Section 5.4
• The judge agreed entirely with the Association’s interpretation, concluding that Section 5.4 “does not impose any duty on the Board members, but rather merely shields them from liability if they act in good faith.”
• In the initial hearing, the judge noted Mr. Stewart “appeared to acknowledge that section 5.4 acts as a ‘shield’ and not a ‘sword.'”
• By the rehearing, this was solidified, with the finding that “Mr. Stewart acknowledges that the Association has not violated Bylaws Section 5.4.”
Assessment of ‘Good Faith’ and Bias Claims
• The ALJ concluded that even if Section 5.4 were applicable, Mr. Stewart “has not shown by a preponderance of the evidence that the Board did not act in good faith, that it had a bias against him, or that it treated him unfairly.”
• The judge found the Board’s reasoning for the denial—the “Pandora’s Box” concern—was “not an unreasonable position for the Board of a condominium association.”
• Given this reasoning, the judge stated that “the specifics of the changes Mr. Stewart made would not be germane to the decision,” thereby neutralizing the claim that the Board failed to properly inspect the modifications.
Evaluation of Unfair Treatment Claim
• The evidence of other non-compliant units was deemed “not probative of the issue at hand.”
• The judge reasoned that there was “no evidence to show that they had requested that the Board grant variances,” meaning their situations were not comparable to Mr. Stewart’s, who had made unapproved changes and was subsequently denied a variance.
Final Disposition
• Initial Decision (September 14, 2018): IT IS ORDERED that Petitioner Lawrence M. Stewart’s petition is dismissed. This order was subject to a request for rehearing within 30 days.
• Rehearing Decision (January 17, 2019): IT IS ORDERED that Petitioner Lawrence M. Stewart’s petition is dismissed. This final order was noted as binding on the parties, with any further appeal requiring judicial review filed with the superior court within 35 days.
Study Guide – 18F-H1818052-REL-RHG
Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.
This guide provides a review of the administrative case Lawrence M. Stewart, Petitioner, vs. Canyon Gate Condominium Association, Inc., Respondent (No. 18F-H1818052-REL), including the initial hearing and a subsequent rehearing.
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Short-Answer Quiz
Instructions: Answer the following questions in two to three sentences, based on the provided case documents.
1. What action by Petitioner Lawrence M. Stewart initiated the dispute with the Canyon Gate Condominium Association?
2. What specific provision of the Association Bylaws did Mr. Stewart allege was violated in his petition?
3. Why did Mr. Stewart resign from the Association’s Board during the February 18, 2018 meeting?
4. What was the Board’s stated reason for denying Mr. Stewart’s request for a variance?
5. Explain the legal interpretation of Bylaws Section 5.4 as a “shield” and not a “sword.”
6. List two pieces of evidence Mr. Stewart presented at the initial hearing to support his claim that Board member David Larson was biased against him.
7. What was the legal standard of proof in this case, and which party was required to meet it?
8. How did Mr. Stewart attempt to prove he was being treated unfairly in comparison to other unit owners, and why did the judge find this evidence unconvincing?
9. At the rehearing, what new evidence did Mr. Stewart present regarding Mr. Larson’s alleged bias?
10. What was the final outcome of both the initial administrative hearing and the subsequent rehearing?
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Answer Key
1. Mr. Stewart initiated the dispute by making changes to the common area and/or limited common area around his unit without first receiving permission from the Association. The Association informed him in a letter dated November 15, 2017, that this was a violation of section 5.1 of the CC&Rs.
2. Mr. Stewart alleged in his petition that the Association violated Bylaws Section 5.4. He later acknowledged this section was not technically violated but cited it because it was the only provision in the governing documents he could find that included a “good faith” requirement.
3. Mr. Stewart resigned from the Board because he “got the sense ‘right away’ that the other Board members’ minds were made up” and that they would not approve his request for a variance, regardless of the details.
4. The Board denied Mr. Stewart’s request on the basis that approving it would “open a Pandora’s Box” where other unit owners would then also request variances. The Administrative Law Judge found this was not an unreasonable position for a condominium association board to take.
5. The interpretation of Section 5.4 is that it acts as a “shield” to protect, or indemnify, Board members from liability for damages, loss, or prejudice, provided they have acted in good faith. It is not a “sword” that imposes an affirmative duty on the Board that Mr. Stewart could use to compel a certain action or claim a violation.
6. At the initial hearing, Mr. Stewart presented two of the following: (1) a biography of Mr. Larson; (2) notes from a November 28, 2017 meeting where Mr. Larson stated that enforcement actions would begin immediately; and (3) a letter from the Association’s attorney that erroneously stated Mr. Stewart had recused himself, suggesting the matter was decided without him.
7. The standard of proof was a “preponderance of the evidence.” The burden of proof rested entirely on the petitioner, Mr. Stewart, to show that the Association had acted improperly.
8. Mr. Stewart presented testimony and photos of other units that he believed were not in conformity with the CC&Rs. The judge found this evidence was not probative because Mr. Stewart provided no evidence that those owners had requested and been denied variances, and he acknowledged he did not know if they had received variances more than two years prior or had received preapproval.
9. At the rehearing, Mr. Stewart entered into evidence an October 3, 2018 letter from Mr. Larson to the Association’s members. In this letter, Mr. Larson urged the members not to vote for Mr. Stewart in an upcoming election.
10. In both the initial decision (September 14, 2018) and the decision following the rehearing (January 17, 2019), the Administrative Law Judge ordered that Mr. Stewart’s petition be dismissed. The Respondent, Canyon Gate Condominium Association, Inc., was deemed the prevailing party in the matter.
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Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response for each prompt, citing specific facts and legal conclusions from the case documents.
1. Analyze the Administrative Law Judge’s reasoning for concluding that Bylaws Section 5.4 was not applicable to Mr. Stewart’s petition. How did Mr. Stewart’s own testimony during the legal proceedings support this conclusion?
2. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Evaluate the evidence Mr. Stewart presented across both hearings and explain why the judge found it insufficient to meet this standard regarding his claims of bias, bad faith, and unfair treatment.
3. Examine the Canyon Gate Board’s justification for denying the variance request (the “Pandora’s Box” argument). Based on the legal principles cited in the decisions, why was this considered a reasonable position for a condominium association board to take, and why did it render the specifics of Mr. Stewart’s changes non-germane?
4. Trace the procedural timeline of this case from the Association’s initial notice of violation on November 15, 2017, to the final binding order issued on January 17, 2019. Identify the key events, arguments, and decisions at each stage of the administrative process.
5. Mr. Stewart argued that he was treated unfairly because other units were also out of compliance with the CC&Rs. Deconstruct this argument and explain why the judge dismissed this line of reasoning as not being probative to the issue at hand in both the initial hearing and the rehearing.
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official (Thomas Shedden) who presides over hearings at the Office of Administrative Hearings and issues a decision on the matter.
Association
The Canyon Gate Condominium Association, Inc., the entity responsible for enforcing the Bylaws and CC&Rs. In this case, it is the Respondent.
The governing body of the Association, which at the time of the variance request included Lawrence M. Stewart, Sandra Fernandez, and David Larson.
Burden of Proof
The obligation to prove one’s assertion. In this case, the burden of proof was on the Petitioner, Mr. Stewart.
Bylaws
A contract between the Association and its members. The parties are required to comply with its terms, and the Association must act reasonably in exercising its authority under them.
Covenants, Conditions, and Restrictions. Mr. Stewart was found to be in violation of section 5.1 of the CC&Rs for making unapproved changes.
Common Area / Limited Common Area
The property around a condominium unit that is shared or has restricted use. Mr. Stewart made unauthorized changes to this area.
Good Faith
A standard of conduct mentioned in Bylaws Section 5.4. It protects Board members from liability so long as they act in good faith based on information they possess. Mr. Stewart claimed the Board failed to meet this standard.
Indemnification
The act of compensating for loss or damage. Bylaws Article V, which contains Section 5.4, pertains to indemnification.
Petitioner
The party who files a petition initiating a legal case. In this matter, the petitioner was Lawrence M. Stewart.
Preponderance of the Evidence
The standard of proof required in this case, defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Rehearing
A second hearing granted in a legal matter. A rehearing was conducted on January 2, 2019, after which the judge issued a final, binding order.
Respondent
The party against whom a petition is filed. In this matter, the respondent was Canyon Gate Condominium Association, Inc.
Variance
An official exception or deviation from a rule. Mr. Stewart requested a variance to allow the unapproved changes he had made, which the Board denied.
Blog Post – 18F-H1818052-REL-RHG
A Homeowner Sued His HOA and Lost—The Surprising Reasons Why Might Save You Thousands
Introduction: The Perennial Battle Between Homeowner and HOA
For many homeowners, the relationship with their Homeowners’ Association (HOA) can feel like a constant source of friction. From landscaping rules to paint colors, the potential for disputes is endless. But what happens when a homeowner feels so strongly wronged that they take the ultimate step of suing their association? More importantly, what happens when they lose?
This is the story of a homeowner who was also a board member. After making unauthorized changes to his property, he was denied his request for a variance to approve the changes he had already made. Believing the Board had acted in bad faith, he sued the association. His case failed, not on a minor technicality, but due to fundamental misunderstandings of how HOA law and governing documents function.
This outcome highlights a common, and costly, misconception about HOA governance. We will explore the surprising legal realities revealed in the case of Lawrence M. Stewart vs. Canyon Gate Condominium Association, Inc., offering several crucial takeaways for any homeowner before they decide to challenge their HOA.
1. A “Good Faith” Clause Can Be a Shield, Not a Sword
Mr. Stewart based his entire case on the claim that the Board violated Section 5.4 of the bylaws by not acting in “good faith,” as this was the only section in the governing documents he could find that mentioned the phrase.
This is where the case pivots on a crucial legal distinction. The court found that this clause was not intended to impose a duty on the board that a homeowner could sue over (a “sword”). Instead, its function was to protect board members from liability if they acted in good faith (a “shield”). Legally, this is an indemnification clause. Think of it as a form of insurance, designed to protect volunteer board members from being personally sued for making reasonable decisions, not a weapon for homeowners to attack those decisions.
In his testimony, Mr. Stewart even acknowledged this “shield” versus “sword” distinction but proceeded with the argument anyway. The lesson for homeowners is unequivocal: you must understand the precise legal function of a clause within your governing documents, not just its keywords.
2. The “Pandora’s Box” Defense Is a Powerful Argument
The Board’s primary reason for denying Mr. Stewart’s variance request was its fear that approval “would open a Pandora’s Box where other unit owners would request variances.” While a homeowner might hear “Pandora’s Box” and think it’s a lazy excuse, the court viewed it as the board performing its fundamental duty.
The judge stated this reasoning “was not an unreasonable position for the Board of a condominium association.” This validation is incredibly impactful because it shifts the focus from the merits of one homeowner’s request to the Board’s overarching fiduciary duty to uphold the rules consistently for the entire community. It shows that an HOA’s duty to maintain consistent enforcement and avoid setting a messy precedent is a legally sound basis for a decision, making the specific details of one homeowner’s changes irrelevant.
3. Being on the Board Won’t Give You a Pass
In a surprising twist, Mr. Stewart was a member of the HOA Board at the very time he made the unauthorized changes and requested the variance. This created a clear conflict of interest and ultimately did not help his case.
The situation culminated in Mr. Stewart resigning from the Board during the meeting where his request was considered. He stated he resigned because he felt “the other Board members’ minds were made up” and they would not approve his request. This incident serves as a stark reminder: holding a position on the board does not grant special privileges or exceptions to the rules. In fact, it can complicate personal matters and highlight a direct conflict between a board member’s duties to the association and their personal interests.
4. “Whataboutism” Is Not a Legal Strategy
Like many homeowners in a dispute, Mr. Stewart argued that he was being treated unfairly because other units in the community were also out of compliance with the CC&Rs. This is a common defense, but its legal failure in this case is a masterclass in what courts actually require for proof.
Mr. Stewart’s effort was commendable but legally insufficient. He presented photos of other non-conforming units and even “verified with the Association that none of these units had received a variance in the last two years.” However, his evidence collapsed under cross-examination when he “acknowledged… he did not know if any of these units had received variances more than two years ago or whether preapproval for the changes had been granted.”
The judge dismissed his evidence entirely. This transforms the lesson from a simple “don’t point fingers” to a much more sophisticated legal principle: to prove selective enforcement, you must prove others in the identical procedural situation were treated differently, and incomplete evidence is no evidence at all.
5. The Burden of Proof Is Everything
Perhaps the most stunning fact from the case is that the Association “presented no witnesses” at either the initial hearing or the subsequent rehearing. They won the case without putting a single person on the stand to testify.
They could do this because the legal system placed the “burden of proof” squarely on Mr. Stewart. As the petitioner, it was his job to prove his claims of bad faith, bias, and unfair treatment by a “preponderance of the evidence.” The Association didn’t have to prove it acted in good faith; Mr. Stewart had to prove it acted in bad faith. He failed to meet this standard. In other words, he had to prove that his claims were more likely to be true than not—even if only by a 51% to 49% margin.
The court document formally defines this legal standard as:
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.
In a legal dispute with your HOA, the case is not about who is morally right or wrong. It’s about who can meet their required burden of proof with convincing, relevant evidence.
Conclusion: Know the Rules Before You Fight the Rulers
The case of Lawrence M. Stewart is a cautionary tale that every homeowner should internalize. His failed lawsuit, which likely became a five-figure mistake when factoring in legal fees for both sides, underscores that HOA governing documents are a binding contract. Challenging the Board requires more than a sense of unfairness. It demands a precise, evidence-backed legal argument that aligns with the specific terms of that contract and the applicable legal standards.
Before you declare war on your HOA, ask yourself: are you prepared to prove your case with irrefutable evidence, or are you just banking on a feeling of being wronged?
Case Participants
Petitioner Side
Lawrence M. Stewart(petitioner) Also served as a Board member for Respondent until resigning during the variance request consideration.
Respondent Side
Mark K. Sahl(attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent in the initial hearing.
Nicolas C. S. Nogami(attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Represented Respondent in both the initial hearing (listed as 'Nichols C. S. Nogami') and the rehearing.
Sandra Fernandez(board member) Canyon Gate Condominium Association, Inc. Voted to deny Petitioner's variance request.
David Larson(board member) Canyon Gate Condominium Association, Inc. Voted to deny Petitioner's variance request; Petitioner alleged he was biased.
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate Recipient of the decision copies.
F. Del Sol(administrative staff) Office of Administrative Hearings Signed the transmission of the decision copies.
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
18F-H1817018-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2019-01-09
Administrative Law Judge
Tammy L. Eigenheer
Outcome
loss
Filing Fees Refunded
$1,500.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Scott Servilla & Heidi H Servilla
Counsel
—
Respondent
Village of Oakcreek Association
Counsel
Mark K. Sahl
Alleged Violations
A.R.S. § 33-1812(A)
Outcome Summary
The Administrative Law Judge denied the entire petition, finding that the Petitioner waived the right to challenge the outcome of the November 10, 2016 vote concerning the faulty ballot (Issue 2) because he failed to object before the vote proceeded. Petitioner also failed to prove his claims regarding the required vote count (Issue 1) and unauthorized fines (Issue 3).
Why this result: Petitioner waived the right to object to the ballot defect (Issue 2) by allowing the vote to proceed without objection after receiving the ballot, and failed to prove the claims for issues 1 and 3.
Key Issues & Findings
Failure to provide separate voting opportunity for each proposed action in absentee ballot
Petitioner alleged the November 10, 2016 vote was invalid because the absentee ballot combined two distinct proposed amendments (Leasing restrictions and Schedule of Fines) into a single vote, contravening the requirement that ballots set forth and provide an opportunity to vote for or against each proposed action.
Orders: Claim failed because Petitioner waived the right to object to the faulty ballot by allowing the vote to proceed without objection.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297
Analytics Highlights
Topics: HOA elections, absentee ballots, waiver doctrine, amendment procedure, fines
Additional Citations:
A.R.S. § 33-1817(A)(1)
A.R.S. § 33-1812(B)(2)
A.R.S. § 33-1812(A)
Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297
Allen v. State, 14 Ariz. 458, 130 P. 1114
Video Overview
Audio Overview
Decision Documents
18F-H1817018-REL-RHG Decision – 673729.pdf
Uploaded 2025-10-09T03:32:15 (40.8 KB)
18F-H1817018-REL-RHG Decision – 673828.pdf
Uploaded 2025-10-09T03:32:15 (48.5 KB)
18F-H1817018-REL-RHG Decision – 680738.pdf
Uploaded 2025-10-09T03:32:15 (103.5 KB)
Briefing Doc – 18F-H1817018-REL-RHG
Briefing Document: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in the case of Scott S. Servilla versus the Village of Oakcreek Association. The final order, issued on January 9, 2019, following a rehearing, denied the petitioner’s claims. The central issue revolved around a homeowners association vote held on November 10, 2016, where two distinct amendments—one concerning property leasing and another a schedule of fines—were combined into a single item on the ballot.
The petitioner argued this ballot format violated Arizona statute A.R.S. § 33-1812(A), which requires a separate opportunity to vote for or against each proposed action. However, the ALJ’s decision did not rule on the merits of this statutory violation. Instead, the petition was denied based on the legal doctrine of waiver. The ALJ concluded that the petitioner, having received the allegedly defective ballot more than a month before the vote, had forfeited his right to challenge the procedure by failing to raise any objection until after the vote was completed and the unfavorable outcome was known. The decision heavily relies on the precedent set by the Arizona Supreme Court in Zajac v. City of Casa Grande, which established that a party cannot knowingly allow a flawed election to proceed and then protest only after receiving an undesirable result. The ALJ’s decision is binding, with any appeal required to be filed in superior court.
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I. Case Overview
This matter was a dispute brought before the Arizona Office of Administrative Hearings between a homeowner and a homeowners association regarding the validity of an amendment to the association’s governing documents.
Case Detail
Information
Case Number
18F-H1817018-REL-RHG
Petitioner
Scott Servilla & Heidi H Servilla
Respondent
Village of Oakcreek Association
Administrative Law Judge
Tammy L. Eigenheer
Hearing Date
November 29, 2018
Record Held Open Until
December 20, 2018
Decision Issued
January 9, 2019
II. Procedural History
1. Initial Petition: On or about November 13, 2017, Scott S. Servilla filed a petition with the Arizona Department of Real Estate against the Village of Oakcreek Association, an HOA with 2436 homeowners.
2. Expansion of Claims: The petitioner initially filed a single-issue petition with a $500 fee but was ordered by the ALJ to either specify the single issue or pay for a multi-issue hearing. The petitioner paid an additional $1,000 and proceeded with three distinct claims.
3. First ALJ Decision: Following an initial hearing, the ALJ found that the petitioner failed to prove two of his three claims. On the second claim—the improper ballot format—the judge found a statutory violation had occurred but concluded that “because the statute did not provide an enforcement mechanism to the Administrative Law Judge, no remedy could be ordered.”
4. Request for Rehearing: The petitioner filed a Request for Reconsideration, arguing that the conclusion of “no remedy” was contrary to law.
5. Rehearing Granted: On or about September 21, 2018, the Commissioner for the Arizona Department of Real Estate granted the request for a rehearing, which was held on November 29, 2018.
III. The Central Dispute: The November 10, 2016 Vote
The core of the dispute was the validity of a vote taken during a Special Meeting of Members on November 10, 2016.
• Bundled Amendments: The vote’s stated purpose was to approve the “Leasing and Schedule of Fines Assessment.” This single proposal combined two separate and substantive changes to the Master Declaration:
1. Addition of Section 4.23:Leasing of Lots and Units; Restrictions and Limitations, which established a minimum lease term of 30 days and prohibited leasing less than an entire unit.
2. Replacement of Section 5.08:Schedule of Fines, which permitted the association’s committee to adopt a new schedule specifying fines for violations.
• Ballot Format: The absentee ballot provided members with only a single voting choice: “FOR THE LEASING AND SCHEDULE OF FINES AMENDMENT” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT.”
• Statutory Violation Alleged: The petitioner contended this format violated A.R.S. § 33-1812(A), which requires that a ballot “shall set forth each proposed action” and “shall provide an opportunity to vote for or against each proposed action.”
• Vote Outcome: A total of 1,067 ballots were received (approximately 44% of members). Of those, 564 voted in favor of the amendment, constituting approximately 53% of the votes cast.
IV. Key Arguments at Rehearing
• Statutory Violation: The ballot was legally defective because it combined two distinct proposed actions into one vote, denying members the right to vote on each separately as required by statute.
• Evidence of Dissent: The petitioner argued that a subsequent vote in April 2017, in which members rejected a proposal to eliminate the By-Laws’ $50 fine limit, demonstrated that “had the proposed amendment been broken into two parts, the part of the proposed amendment dealing with the fines most likely would have failed.”
• Requested Remedy: The petitioner argued that based on case law, the ALJ was authorized to declare the entire amendment void and unenforceable.
• Waiver of Objection: The respondent’s primary argument was that the petitioner had waived any right to object to the ballot format. The petitioner received the absentee ballot on or about October 4, 2016, but did not raise an objection until April 2017, long after the November 10, 2016 vote was completed.
• Lack of Enforcement Provision: The respondent also maintained its earlier position that even if a violation of A.R.S. § 33-1812(A)(2) occurred, the statute itself provides no enforcement mechanism or remedy.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s final decision denied the petitioner’s petition in its entirety, based solely on the legal principle of waiver.
The ALJ found that the petitioner’s failure to object to the ballot’s format in a timely manner was fatal to his claim.
• Awareness of Defect: The petitioner received the absentee ballot on October 4, 2016, over a month before the November 10, 2016 vote. This provided sufficient time to identify the procedural issue and raise an objection.
• Failure to Act: By not objecting before the vote, the petitioner allowed the flawed process to proceed. He only lodged a complaint after the results were not in his favor.
• Forfeiture of Rights: The ALJ concluded, “As Petitioner was or should have been aware of the alleged issues with the ballot, he waived his right to bring forth a complaint about the ballot when he allowed the vote to proceed on November 10, 2016.”
The decision rested on the Arizona Supreme Court case Zajac v. City of Casa Grande (2004), which itself relied on Allen v. State (1913). This precedent establishes that a party cannot remain silent about a known procedural defect in an election process and then challenge the process only after an unfavorable outcome.
• Key Principle: The ALJ articulated the principle from Zajac: “one cannot knowingly let a defective vote proceed only to complain and seek redress if the results are not to the individual’s liking.”
• Direct Quotation: The decision directly quotes the ruling in Zajac to finalize its point: “He cannot have it both ways; that is, he cannot allow the [vote] to proceed without objection, and then be permitted thereafter to assert his protest.”
• Petition Denied: “IT IS ORDERED that Petitioner’s petition is denied.”
• Binding Decision: As the decision was issued as a result of a rehearing, it is legally binding on the parties.
• Appeal Process: Any party wishing to appeal the order must file for judicial review with the superior court within thirty-five days from the date the order was served (January 9, 2019).
Study Guide – 18F-H1817018-REL-RHG
Study Guide: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)
This guide provides a comprehensive review of the administrative legal case involving Petitioner Scott Servilla and Respondent Village of Oakcreek Association, as detailed in the Administrative Law Judge Decision of January 9, 2019. It includes a short-answer quiz to test factual recall, a corresponding answer key, suggested essay questions for deeper analysis, and a glossary of key terms.
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Short Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based entirely on the information provided in the source documents.
1. Who were the primary parties in this case, and what roles did they play?
2. What were the two distinct proposed changes that were combined into a single voting item on the November 10, 2016 absentee ballot?
3. Which specific Arizona Revised Statute did the Petitioner allege was violated by the format of the ballot, and what does that statute require?
4. What was the numerical outcome of the November 10, 2016 vote on the proposed amendment?
5. What was the Respondent’s primary legal argument for why the Petitioner’s complaint about the faulty ballot should be dismissed?
6. What key legal precedent, specifically the case of Zajac v. City of Casa Grande, did the Administrative Law Judge (ALJ) rely upon in the final decision?
7. According to the decision, when did the Petitioner receive the ballot, and why was this date critical to the ALJ’s final ruling?
8. What was the finding in the initial Administrative Law Judge Decision regarding the ballot issue, and why did it lead to a request for a rehearing?
9. Describe the separate vote that occurred in April 2017 and explain how the Petitioner used it to support his argument regarding the 2016 vote.
10. What was the final order issued by Administrative Law Judge Tammy L. Eigenheer on January 9, 2019, and what was the legal basis for this order?
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Answer Key
1. The primary parties were the Petitioner, Scott S. Servilla (who appeared on his own behalf), and the Respondent, the Village of Oakcreek Association (a homeowners association represented by Mark Sahl). The Petitioner filed a complaint against the Respondent with the Arizona Department of Real Estate.
2. The two proposed changes were the addition of a new section, 4.23, concerning “Leasing of Lots and Units; Restrictions and Limitations,” and the complete replacement of an existing section, 5.08, titled “Schedule of Fines.” The ballot presented these as a single item called the “LEASING AND SCHEDULE OF FINES AMENDMENT.”
3. The Petitioner alleged a violation of A.R.S. § 33-1812(A)(2) and A.R.S. § 33-1812(B)(2). The statute requires that an absentee ballot “shall set forth each proposed action” and “shall provide an opportunity to vote for or against each proposed action.”
4. A total of 1067 ballots were received, representing approximately 44 percent of the members. Of those who voted, 564 (approximately 53 percent) voted in favor of the proposed amendment.
5. The Respondent’s primary argument was that the Petitioner had waived any right to object to the ballot’s format. The Respondent contended that the Petitioner should have raised his objection before the vote occurred, rather than waiting until after the results were known.
6. The ALJ relied on the precedent set in Zajac v. City of Casa Grande. This Arizona Supreme Court case established the principle that an individual aware of a procedural issue with an election cannot wait to see the results before lodging a complaint.
7. The Petitioner acknowledged receiving the absentee ballot on or about October 4, 2016, more than a month before the November 10, 2016 vote. This date was critical because it demonstrated that the Petitioner had ample time to object to the ballot’s format before the vote took place, supporting the ALJ’s waiver finding.
8. In the initial decision, the ALJ found that a violation of the statute had occurred regarding the ballot but concluded that no remedy could be ordered because the statute lacked an enforcement mechanism. The Petitioner requested a rehearing, alleging that this conclusion was contrary to the law and that the ALJ did have the authority to declare the amendment void.
9. In April 2017, a separate proposed amendment to eliminate the By-Laws’ $50 fine limitation was voted down by the members. The Petitioner argued this subsequent vote demonstrated that the fines portion of the November 2016 amendment would likely have failed if members had been given a separate opportunity to vote on it.
10. The final order, issued January 9, 2019, denied the Petitioner’s petition. The legal basis was the doctrine of waiver; the ALJ ruled that because the Petitioner was aware of the alleged issues with the ballot before the vote and failed to object, he waived his right to complain about it after the results were announced.
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Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate comprehensive essay responses based on the details and legal reasoning presented in the source documents.
1. Explain the legal doctrine of waiver as applied in this case. How did the timeline of events, from the receipt of the ballot to the filing of the petition, support the Administrative Law Judge’s application of the principles from Zajac v. City of Casa Grande?
2. Analyze the conflicting interpretations of “proposed action” under A.R.S. § 33-1812(A) as presented by the Petitioner and the Respondent. Although the Judge ultimately ruled on procedural grounds, which party’s interpretation of the statute appears more consistent with the law’s text and intent?
3. Discuss the procedural history of this case, from the initial filing with the Arizona Department of Real Estate through the first decision, the request for reconsideration, and the final ruling on rehearing. What does this progression reveal about the administrative hearing process and the remedies available to petitioners?
4. The Petitioner attempted to use the results of an April 2017 vote to argue that the fines portion of the November 2016 amendment would likely have failed if voted on separately. Evaluate the strength and relevance of this argument within the legal context of the case.
5. Imagine the Petitioner had raised his objection to the ballot format before the November 10, 2016 vote. Based on the information in the decision, how might the proceedings and the ultimate outcome have been different?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, hears evidence, and issues decisions and orders. In this case, Tammy L. Eigenheer.
A.R.S. (Arizona Revised Statutes)
The collection of laws enacted by the Arizona state legislature. The Petitioner alleged violations of A.R.S. § 33-1817 and § 33-1812.
Absentee Ballot
A ballot that allows a member to vote without being physically present at a meeting. The format of this ballot was the central issue of the rehearing.
By-Laws
The rules that govern the internal operations of an association. The Petitioner cited a violation of By-Laws Section 8, Article VIII concerning a $50 fine limit.
Department (The Department)
The Arizona Department of Real Estate, the state agency where the Petitioner first filed his petition against the homeowners association.
Master Declaration
A core governing document for a homeowners association that establishes rules, restrictions, and obligations for homeowners. The November 10, 2016 vote was to amend this document.
A formal, binding decision issued by a judge. The final document in this case was an order denying the Petitioner’s petition.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Scott Servilla & Heidi H. Servilla.
Preponderance of the Evidence
The standard of proof required in this proceeding. It means the evidence presented is more convincing and likely to be true than the evidence offered in opposition.
Rehearing
A second hearing of a case granted to reconsider the initial decision. A rehearing was granted after the Petitioner argued that the initial finding of “no remedy” was contrary to law.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Village of Oakcreek Association.
Waiver
A legal doctrine where a party intentionally or through inaction gives up a known right or claim. The ALJ ruled the Petitioner waived his right to object to the ballot by not raising the issue before the vote.
Zajac v. City of Casa Grande
An Arizona Supreme Court case that established a key legal precedent used in this decision. It holds that a party cannot knowingly allow a defective vote to proceed and then complain only if the results are unfavorable.
Blog Post – 18F-H1817018-REL-RHG
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“docket_no”: “18F-H1817018-REL-RHG”,
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},
{
“name”: “D. Gardner”,
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{
“name”: “Felicia Del Sol”,
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}
]
}
{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “18F-H1817018-REL-RHG”, “case_title”: “Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association”, “decision_date”: “2019-01-09”, “alj_name”: “Tammy L. Eigenheer” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Scott Servilla & Heidi H Servilla”, “party_type”: “homeowner”, “email”: null, “phone”: null, “attorney_name”: null, “attorney_firm”: null, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “Village of Oakcreek Association”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Mark K. Sahl”, “attorney_firm”: “CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP”, “attorney_email”: null, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute”, “citation”: “A.R.S. § 33-1812(A)”, “caption”: “Failure to provide separate voting opportunity for each proposed action in absentee ballot”, “violation(s)”: “Written ballot used did not provide a separate opportunity to vote for or against each proposed action, violating A.R.S. § 33-1812(B)(2) and the Declaration12.”, “summary”: “Petitioner alleged the November 10, 2016 vote was invalid because the absentee ballot combined two distinct proposed amendments (Leasing restrictions and Schedule of Fines) into a single vote, contravening the requirement that ballots set forth and provide an opportunity to vote for or against each proposed action1….”, “outcome”: “respondent_win”, “filing_fee_paid”: 500.0, “filing_fee_refunded”: false, “civil_penalty_amount”: 0.0, “orders_summary”: “Claim failed because Petitioner waived the right to object to the faulty ballot by allowing the vote to proceed without objection45.”, “why_the_loss”: “Petitioner was aware of the alleged issue with the ballot prior to the November 10, 2016 vote but failed to raise an objection, thus waiving the right to complain thereafter46.”, “cited”: [ “Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297” ] } ], “money_summary”: { “issues_count”: 3, “total_filing_fees_paid”: 1500.0, “total_filing_fees_refunded”: 0.0, “total_civil_penalties”: 0.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “loss”, “summarize_judgement”: “The Administrative Law Judge denied the entire petition, finding that the Petitioner waived the right to challenge the outcome of the November 10, 2016 vote concerning the faulty ballot (Issue 2) because he failed to object before the vote proceeded. Petitioner also failed to prove his claims regarding the required vote count (Issue 1) and unauthorized fines (Issue 3)4….”, “why_the_loss”: “Petitioner waived the right to object to the ballot defect (Issue 2) by allowing the vote to proceed without objection after receiving the ballot, and failed to prove the claims for issues 1 and 34….” }, “analytics”: { “cited”: [ “A.R.S. § 33-1817(A)(1)”, “A.R.S. § 33-1812(B)(2)”, “A.R.S. § 33-1812(A)”, “Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297”, “Allen v. State, 14 Ariz. 458, 130 P. 1114” ], “tags”: [ “HOA elections”, “absentee ballots”, “waiver doctrine”, “amendment procedure”, “fines” ] } }
{ “rehearing”: { “is_rehearing”: true, “base_case_id”: “18F-H1817018-REL”, “original_decision_status”: “affirmed”, “original_decision_summary”: “In the original decision, the Administrative Law Judge found that the Petitioner failed to prove claims regarding issues one and three1. For issue two (faulty ballot), the ALJ established a statutory violation of A.R.S. § 33-1812(B)(2), but concluded that no remedy could be ordered because the statute did not provide an enforcement mechanism1.”, “rehearing_decision_summary”: “The Commissioner granted the rehearing to address the legal conclusion that no remedy could be ordered for the violation found in Issue 22. Following the rehearing, the Administrative Law Judge denied the entire petition3, concluding that Petitioner waived the right to complain about the faulty ballot because he was aware of the alleged issues but allowed the November 10, 2016 vote to proceed without objection4….”, “issues_challenged”: [ { “issue_number”: 2, “description”: “Violation of A.R.S. § 33-1812(B)(2) because the written ballot used did not provide a separate opportunity to vote for or against each proposed action7.”, “challenge”: “Petitioner challenged the original conclusion that no remedy could be ordered, alleging this was contrary to the law and arguing that the Administrative Law Judge was authorized to declare the amendment void and unenforceable28.”, “rehearing_outcome”: “Denied/Failed. The claim failed because the ALJ ruled that Petitioner waived his right to bring forth a complaint about the ballot by allowing the vote to proceed without objection36.” } ] } }
{
“case”: {
“docket_no”: “18F-H1817018-REL-RHG”,
“case_title”: “Scott Servilla & Heidi H Servilla, Petitioner, vs. Village of Oakcreek Association, Respondent.”,
“decision_date”: “January 9, 2019”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Scott Servilla”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: “Also referred to as Scott S. Servilla”
},
{
“name”: “Heidi H Servilla”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Tammy L. Eigenheer”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “Office of Administrative Hearings”,
“notes”: null
},
{
“name”: “Mark K. Sahl”,
“role”: “attorney”,
“side”: “respondent”,
“affiliation”: “CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP”,
“notes”: null
},
{
“name”: “Judy Lowe”,
“role”: “commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: null
},
{
“name”: “c. serrano”,
“role”: “staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted documents”
},
{
“name”: “Felicia Del Sol”,
“role”: “staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted documents”
}
]
}
This document summarizes the administrative law judge decision in the rehearing case of Scott Servilla & Heidi H Servilla v. Village of Oakcreek Association, Case No. 18F-H1817018-REL-RHG1. This matter was heard by Administrative Law Judge Tammy L. Eigenheer on November 29, 2018, with the record held open until December 20, 20181.
Procedural History (Original Decision vs. Rehearing)
Petitioner Scott Servilla filed a petition with the Arizona Department of Real Estate (ADRE) against the Village of Oakcreek Association (Respondent) alleging multiple violations of statute and the community’s Master Declaration2,3.
Original Decision: The Administrative Law Judge initially ruled on three issues4. The ALJ found that Petitioner failed to prove two claims5. However, the ALJ found that the Respondent violated A.R.S. § 33-1812(B)(2) regarding the written ballot, but concluded that because the statute did not provide an enforcement mechanism, no remedy could be ordered5.
Rehearing Grant: Following this initial decision, Petitioner filed a Request for Reconsideration, arguing the conclusion that no remedy existed was contrary to law6. The ADRE Commissioner granted the request for rehearing6.
Key Facts and Issue for Rehearing
The central issue during the rehearing concerned the statutory violation found in the original decision: whether the November 10, 2016 vote to amend the Master Declaration was invalid because the absentee ballot failed to comply with A.R.S. § 33-1812(A)4,7.
The Ballot Violation: A.R.S. § 33-1812(A) requires that absentee ballots set forth “each proposed action” and provide an opportunity to vote for or against “each proposed action”7. The Respondent’s proposed amendment bundled two distinct actions: the addition of leasing restrictions and the complete replacement of the Schedule of Fines8,9,10. The ballot only allowed members to vote “FOR” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT” as a single package9.
Key Legal Argument and Decision
At the rehearing, the core legal debate shifted from whether a violation occurred to whether the Petitioner was entitled to relief, specifically whether the ALJ could declare the amendment void and unenforceable6,11.
Respondent’s Defense and the Doctrine of Waiver: Respondent argued that Petitioner had waived the right to object because he did not raise any complaint about the defective ballot prior to the vote12. Petitioner received the ballot more than one month before the November 10, 2016 vote13.
ALJ Legal Conclusion: Drawing on Arizona Supreme Court precedent (Zajac v. City of Casa Grande)10,14, the Administrative Law Judge concluded that an individual cannot allow a known defective vote to proceed and only complain afterward if dissatisfied with the results15,16. Because Petitioner failed to raise an objection to the faulty ballot prior to the scheduled vote, he waived his right to bring a subsequent complaint about the ballot16.
Based on the application of the waiver doctrine, the ALJ found that Petitioner’s claim as to the ballot must fail16. The Administrative Law Judge ordered that Petitioner’s petition is denied17. This order, resulting from the rehearing, is binding on the parties17.
{
“case”: {
“agency”: “ADRE”,
“tribunal”: “OAH”,
“docket_no”: “18F-H1817018-REL-RHG”,
“case_title”: “Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association”,
“decision_date”: “2019-01-09”,
“alj_name”: “Tammy L. Eigenheer”
},
“parties”: [
{
“party_id”: “P1”,
“role”: “petitioner”,
“name”: “Scott Servilla & Heidi H Servilla”,
“party_type”: “homeowner”,
“email”: null,
“phone”: null,
“attorney_name”: null,
“attorney_firm”: null,
“attorney_email”: null,
“attorney_phone”: null
},
{
“party_id”: “R1”,
“role”: “respondent”,
“name”: “Village of Oakcreek Association”,
“party_type”: “HOA”,
“email”: null,
“phone”: null,
“attorney_name”: “Mark K. Sahl”,
“attorney_firm”: “CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP”,
“attorney_email”: null,
“attorney_phone”: null
}
],
“issues”: [
{
“issue_id”: “ISS-001”,
“type”: “statute”,
“citation”: “A.R.S. § 33-1817(A)(1)”,
“caption”: “Vote count required to amend declaration”,
“violation(s)”: “Alleged violation of A.R.S. § 33-1817(A)(1) and Declaration regarding the required majority vote (1173 votes) for the November 10, 2016 amendment.”,
“summary”: “Petitioner requested an order declaring the amendment invalid due to insufficient vote count.”,
“outcome”: “respondent_win”,
“filing_fee_paid”: 500.0,
“filing_fee_refunded”: false,
“civil_penalty_amount”: 0.0,
“orders_summary”: “Claim failed.”,
“why_the_loss”: “Petitioner failed to prove the claim.”,
“cited”: []
},
{
“issue_id”: “ISS-002”,
“type”: “statute”,
“citation”: “A.R.S. § 33-1812(A)”,
“caption”: “Absence of separate voting opportunity for proposed actions”,
“violation(s)”: “The written ballot used for the November 10, 2016 amendment violated A.R.S. § 33-1812(A) and (B)(2) because it bundled two distinct proposed actions (Leasing Restrictions and Schedule of Fines) into a single vote.”,
“summary”: “Petitioner sought an order declaring the amendment invalid because the ballot improperly required a single vote on two separate actions.”,
“outcome”: “respondent_win”,
“filing_fee_paid”: 500.0,
“filing_fee_refunded”: false,
“civil_penalty_amount”: 0.0,
“orders_summary”: “Claim denied on rehearing. Petition denied.”,
“why_the_loss”: “Petitioner waived the right to object to the faulty ballot by receiving it over a month prior and allowing the vote to proceed on November 10, 2016, without raising a complaint.”,
“cited”: [
“A.R.S. § 33-1812(A)”,
“Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297”,
“Allen v. State, 14 Ariz. 458, 130 P. 1114”
]
},
{
“issue_id”: “ISS-003”,
“type”: “governing_document”,
“citation”: “By-Laws Section 8, Article VIII”,
“caption”: “Unauthorized fines in excess of $50”,
“violation(s)”: “Respondent allegedly violated By-Laws by imposing fines in excess of $50 per violation, especially after a proposed amendment to raise the fines was voted down.”,
“summary”: “Petitioner requested an order that the Association cannot levy fines in excess of $50 per violation.”,
“outcome”: “respondent_win”,
“filing_fee_paid”: 500.0,
“filing_fee_refunded”: false,
“civil_penalty_amount”: 0.0,
“orders_summary”: “Claim failed.”,
“why_the_loss”: “Petitioner failed to prove the claim.”,
“cited”: []
}
],
“money_summary”: {
“issues_count”: 3,
“total_filing_fees_paid”: 1500.0,
“total_filing_fees_refunded”: 0.0,
“total_civil_penalties”: 0.0
},
“outcomes”: {
“petitioner_is_hoa”: false,
“petitioner_win”: “loss”,
“summarize_judgement”: “The Administrative Law Judge denied the entire petition. Although the Respondent used a faulty ballot (Issue 2), the Petitioner waived the right to object by failing to raise a complaint prior to the vote. Petitioner also failed to prove his claims for issues 1 and 3.”,
“why_the_loss”: “Petitioner waived the right to object to the ballot defect (Issue 2) by allowing the vote to proceed without objection, and failed to prove the claims for Issues 1 and 3.”,
“cited”: [
“A.R.S. § 33-1812(A)”,
“Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297”
]
},
“analytics”: {
“cited”: [
“A.R.S. § 33-1817(A)(1)”,
“A.R.S. § 33-1812(A)”,
“A.R.S. § 33-1812(B)(2)”,
“Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297”,
“Allen v. State, 14 Ariz. 458, 130 P. 1114”
],
“tags”: [
“HOA elections”,
“absentee ballots”,
“waiver doctrine”,
“amendment procedure”,
“fines”
]
}
}
{
“case”: {
“docket_no”: “18F-H1817018-REL-RHG”,
“case_title”: “Scott Servilla & Heidi H Servilla, vs. Village of Oakcreek Association”,
“decision_date”: “2019-01-09”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Scott Servilla”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: “Appeared on his own behalf at the hearing; also listed as Scott S. Servilla [1], [2]”
},
{
“name”: “Heidi H Servilla”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Tammy L. Eigenheer”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “Office of Administrative Hearings”,
“notes”: “Administrative Law Judge [3], [4], [1], [2]”
},
{
“name”: “Mark K. Sahl”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP”,
“notes”: “Represented Village of Oakcreek Association [2]”
},
{
“name”: “Judy Lowe”,
“role”: “commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Granted the request for rehearing [5]”
},
{
“name”: “c. serrano”,
“role”: “staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted documents on November 29, 2018 [6], [7]”
},
{
“name”: “Felicia Del Sol”,
“role”: “staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted documents on January 9, 2019 [8]”
},
{
“name”: “LDettorre”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
},
{
“name”: “AHansen”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
},
{
“name”: “djones”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
},
{
“name”: “DGardner”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
},
{
“name”: “ncano”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
}
]
}
Case Participants
Petitioner Side
Scott Servilla(petitioner) Also referred to as Scott S. Servilla
Heidi H Servilla(petitioner)
Respondent Side
Mark K. Sahl(attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate
The Administrative Law Judge denied the entire petition. Although the Respondent used a faulty ballot (Issue 2), the Petitioner waived the right to object by failing to raise a complaint prior to the vote. Petitioner also failed to prove his claims for issues 1 and 3.
Why this result: Petitioner waived the right to object to the ballot defect (Issue 2) by allowing the vote to proceed without objection, and failed to prove the claims for Issues 1 and 3.
Key Issues & Findings
Vote count required to amend declaration
Petitioner requested an order declaring the amendment invalid due to insufficient vote count.
Orders: Claim failed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Absence of separate voting opportunity for proposed actions
Petitioner sought an order declaring the amendment invalid because the ballot improperly required a single vote on two separate actions.
Orders: Claim denied on rehearing. Petition denied.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1812(A)
Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297
Allen v. State, 14 Ariz. 458, 130 P. 1114
Unauthorized fines in excess of $50
Petitioner requested an order that the Association cannot levy fines in excess of $50 per violation.
Orders: Claim failed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Analytics Highlights
Topics: HOA elections, absentee ballots, waiver doctrine, amendment procedure, fines
Additional Citations:
A.R.S. § 33-1817(A)(1)
A.R.S. § 33-1812(A)
A.R.S. § 33-1812(B)(2)
Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297
Allen v. State, 14 Ariz. 458, 130 P. 1114
Video Overview
Audio Overview
Decision Documents
18F-H1817018-REL-RHG Decision – 673729.pdf
Uploaded 2026-01-23T17:22:28 (40.8 KB)
18F-H1817018-REL-RHG Decision – 673828.pdf
Uploaded 2026-01-23T17:22:31 (48.5 KB)
18F-H1817018-REL-RHG Decision – 680738.pdf
Uploaded 2026-01-23T17:22:34 (103.5 KB)
Briefing Doc – 18F-H1817018-REL-RHG
Briefing Document: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)
Executive Summary
This briefing document analyzes the Administrative Law Judge (ALJ) Decision in the case of Scott S. Servilla versus the Village of Oakcreek Association. The final order, issued on January 9, 2019, following a rehearing, denied the petitioner’s claims. The central issue revolved around a homeowners association vote held on November 10, 2016, where two distinct amendments—one concerning property leasing and another a schedule of fines—were combined into a single item on the ballot.
The petitioner argued this ballot format violated Arizona statute A.R.S. § 33-1812(A), which requires a separate opportunity to vote for or against each proposed action. However, the ALJ’s decision did not rule on the merits of this statutory violation. Instead, the petition was denied based on the legal doctrine of waiver. The ALJ concluded that the petitioner, having received the allegedly defective ballot more than a month before the vote, had forfeited his right to challenge the procedure by failing to raise any objection until after the vote was completed and the unfavorable outcome was known. The decision heavily relies on the precedent set by the Arizona Supreme Court in Zajac v. City of Casa Grande, which established that a party cannot knowingly allow a flawed election to proceed and then protest only after receiving an undesirable result. The ALJ’s decision is binding, with any appeal required to be filed in superior court.
——————————————————————————–
I. Case Overview
This matter was a dispute brought before the Arizona Office of Administrative Hearings between a homeowner and a homeowners association regarding the validity of an amendment to the association’s governing documents.
Case Detail
Information
Case Number
18F-H1817018-REL-RHG
Petitioner
Scott Servilla & Heidi H Servilla
Respondent
Village of Oakcreek Association
Administrative Law Judge
Tammy L. Eigenheer
Hearing Date
November 29, 2018
Record Held Open Until
December 20, 2018
Decision Issued
January 9, 2019
II. Procedural History
1. Initial Petition: On or about November 13, 2017, Scott S. Servilla filed a petition with the Arizona Department of Real Estate against the Village of Oakcreek Association, an HOA with 2436 homeowners.
2. Expansion of Claims: The petitioner initially filed a single-issue petition with a $500 fee but was ordered by the ALJ to either specify the single issue or pay for a multi-issue hearing. The petitioner paid an additional $1,000 and proceeded with three distinct claims.
3. First ALJ Decision: Following an initial hearing, the ALJ found that the petitioner failed to prove two of his three claims. On the second claim—the improper ballot format—the judge found a statutory violation had occurred but concluded that “because the statute did not provide an enforcement mechanism to the Administrative Law Judge, no remedy could be ordered.”
4. Request for Rehearing: The petitioner filed a Request for Reconsideration, arguing that the conclusion of “no remedy” was contrary to law.
5. Rehearing Granted: On or about September 21, 2018, the Commissioner for the Arizona Department of Real Estate granted the request for a rehearing, which was held on November 29, 2018.
III. The Central Dispute: The November 10, 2016 Vote
The core of the dispute was the validity of a vote taken during a Special Meeting of Members on November 10, 2016.
• Bundled Amendments: The vote’s stated purpose was to approve the “Leasing and Schedule of Fines Assessment.” This single proposal combined two separate and substantive changes to the Master Declaration:
1. Addition of Section 4.23:Leasing of Lots and Units; Restrictions and Limitations, which established a minimum lease term of 30 days and prohibited leasing less than an entire unit.
2. Replacement of Section 5.08:Schedule of Fines, which permitted the association’s committee to adopt a new schedule specifying fines for violations.
• Ballot Format: The absentee ballot provided members with only a single voting choice: “FOR THE LEASING AND SCHEDULE OF FINES AMENDMENT” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT.”
• Statutory Violation Alleged: The petitioner contended this format violated A.R.S. § 33-1812(A), which requires that a ballot “shall set forth each proposed action” and “shall provide an opportunity to vote for or against each proposed action.”
• Vote Outcome: A total of 1,067 ballots were received (approximately 44% of members). Of those, 564 voted in favor of the amendment, constituting approximately 53% of the votes cast.
IV. Key Arguments at Rehearing
• Statutory Violation: The ballot was legally defective because it combined two distinct proposed actions into one vote, denying members the right to vote on each separately as required by statute.
• Evidence of Dissent: The petitioner argued that a subsequent vote in April 2017, in which members rejected a proposal to eliminate the By-Laws’ $50 fine limit, demonstrated that “had the proposed amendment been broken into two parts, the part of the proposed amendment dealing with the fines most likely would have failed.”
• Requested Remedy: The petitioner argued that based on case law, the ALJ was authorized to declare the entire amendment void and unenforceable.
• Waiver of Objection: The respondent’s primary argument was that the petitioner had waived any right to object to the ballot format. The petitioner received the absentee ballot on or about October 4, 2016, but did not raise an objection until April 2017, long after the November 10, 2016 vote was completed.
• Lack of Enforcement Provision: The respondent also maintained its earlier position that even if a violation of A.R.S. § 33-1812(A)(2) occurred, the statute itself provides no enforcement mechanism or remedy.
V. Administrative Law Judge’s Decision and Rationale
The ALJ’s final decision denied the petitioner’s petition in its entirety, based solely on the legal principle of waiver.
The ALJ found that the petitioner’s failure to object to the ballot’s format in a timely manner was fatal to his claim.
• Awareness of Defect: The petitioner received the absentee ballot on October 4, 2016, over a month before the November 10, 2016 vote. This provided sufficient time to identify the procedural issue and raise an objection.
• Failure to Act: By not objecting before the vote, the petitioner allowed the flawed process to proceed. He only lodged a complaint after the results were not in his favor.
• Forfeiture of Rights: The ALJ concluded, “As Petitioner was or should have been aware of the alleged issues with the ballot, he waived his right to bring forth a complaint about the ballot when he allowed the vote to proceed on November 10, 2016.”
The decision rested on the Arizona Supreme Court case Zajac v. City of Casa Grande (2004), which itself relied on Allen v. State (1913). This precedent establishes that a party cannot remain silent about a known procedural defect in an election process and then challenge the process only after an unfavorable outcome.
• Key Principle: The ALJ articulated the principle from Zajac: “one cannot knowingly let a defective vote proceed only to complain and seek redress if the results are not to the individual’s liking.”
• Direct Quotation: The decision directly quotes the ruling in Zajac to finalize its point: “He cannot have it both ways; that is, he cannot allow the [vote] to proceed without objection, and then be permitted thereafter to assert his protest.”
• Petition Denied: “IT IS ORDERED that Petitioner’s petition is denied.”
• Binding Decision: As the decision was issued as a result of a rehearing, it is legally binding on the parties.
• Appeal Process: Any party wishing to appeal the order must file for judicial review with the superior court within thirty-five days from the date the order was served (January 9, 2019).
Study Guide – 18F-H1817018-REL-RHG
Study Guide: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)
This guide provides a comprehensive review of the administrative legal case involving Petitioner Scott Servilla and Respondent Village of Oakcreek Association, as detailed in the Administrative Law Judge Decision of January 9, 2019. It includes a short-answer quiz to test factual recall, a corresponding answer key, suggested essay questions for deeper analysis, and a glossary of key terms.
——————————————————————————–
Short Answer Quiz
Instructions: Answer the following ten questions in 2-3 sentences each, based entirely on the information provided in the source documents.
1. Who were the primary parties in this case, and what roles did they play?
2. What were the two distinct proposed changes that were combined into a single voting item on the November 10, 2016 absentee ballot?
3. Which specific Arizona Revised Statute did the Petitioner allege was violated by the format of the ballot, and what does that statute require?
4. What was the numerical outcome of the November 10, 2016 vote on the proposed amendment?
5. What was the Respondent’s primary legal argument for why the Petitioner’s complaint about the faulty ballot should be dismissed?
6. What key legal precedent, specifically the case of Zajac v. City of Casa Grande, did the Administrative Law Judge (ALJ) rely upon in the final decision?
7. According to the decision, when did the Petitioner receive the ballot, and why was this date critical to the ALJ’s final ruling?
8. What was the finding in the initial Administrative Law Judge Decision regarding the ballot issue, and why did it lead to a request for a rehearing?
9. Describe the separate vote that occurred in April 2017 and explain how the Petitioner used it to support his argument regarding the 2016 vote.
10. What was the final order issued by Administrative Law Judge Tammy L. Eigenheer on January 9, 2019, and what was the legal basis for this order?
——————————————————————————–
Answer Key
1. The primary parties were the Petitioner, Scott S. Servilla (who appeared on his own behalf), and the Respondent, the Village of Oakcreek Association (a homeowners association represented by Mark Sahl). The Petitioner filed a complaint against the Respondent with the Arizona Department of Real Estate.
2. The two proposed changes were the addition of a new section, 4.23, concerning “Leasing of Lots and Units; Restrictions and Limitations,” and the complete replacement of an existing section, 5.08, titled “Schedule of Fines.” The ballot presented these as a single item called the “LEASING AND SCHEDULE OF FINES AMENDMENT.”
3. The Petitioner alleged a violation of A.R.S. § 33-1812(A)(2) and A.R.S. § 33-1812(B)(2). The statute requires that an absentee ballot “shall set forth each proposed action” and “shall provide an opportunity to vote for or against each proposed action.”
4. A total of 1067 ballots were received, representing approximately 44 percent of the members. Of those who voted, 564 (approximately 53 percent) voted in favor of the proposed amendment.
5. The Respondent’s primary argument was that the Petitioner had waived any right to object to the ballot’s format. The Respondent contended that the Petitioner should have raised his objection before the vote occurred, rather than waiting until after the results were known.
6. The ALJ relied on the precedent set in Zajac v. City of Casa Grande. This Arizona Supreme Court case established the principle that an individual aware of a procedural issue with an election cannot wait to see the results before lodging a complaint.
7. The Petitioner acknowledged receiving the absentee ballot on or about October 4, 2016, more than a month before the November 10, 2016 vote. This date was critical because it demonstrated that the Petitioner had ample time to object to the ballot’s format before the vote took place, supporting the ALJ’s waiver finding.
8. In the initial decision, the ALJ found that a violation of the statute had occurred regarding the ballot but concluded that no remedy could be ordered because the statute lacked an enforcement mechanism. The Petitioner requested a rehearing, alleging that this conclusion was contrary to the law and that the ALJ did have the authority to declare the amendment void.
9. In April 2017, a separate proposed amendment to eliminate the By-Laws’ $50 fine limitation was voted down by the members. The Petitioner argued this subsequent vote demonstrated that the fines portion of the November 2016 amendment would likely have failed if members had been given a separate opportunity to vote on it.
10. The final order, issued January 9, 2019, denied the Petitioner’s petition. The legal basis was the doctrine of waiver; the ALJ ruled that because the Petitioner was aware of the alleged issues with the ballot before the vote and failed to object, he waived his right to complain about it after the results were announced.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed to encourage deeper analysis of the case. Formulate comprehensive essay responses based on the details and legal reasoning presented in the source documents.
1. Explain the legal doctrine of waiver as applied in this case. How did the timeline of events, from the receipt of the ballot to the filing of the petition, support the Administrative Law Judge’s application of the principles from Zajac v. City of Casa Grande?
2. Analyze the conflicting interpretations of “proposed action” under A.R.S. § 33-1812(A) as presented by the Petitioner and the Respondent. Although the Judge ultimately ruled on procedural grounds, which party’s interpretation of the statute appears more consistent with the law’s text and intent?
3. Discuss the procedural history of this case, from the initial filing with the Arizona Department of Real Estate through the first decision, the request for reconsideration, and the final ruling on rehearing. What does this progression reveal about the administrative hearing process and the remedies available to petitioners?
4. The Petitioner attempted to use the results of an April 2017 vote to argue that the fines portion of the November 2016 amendment would likely have failed if voted on separately. Evaluate the strength and relevance of this argument within the legal context of the case.
5. Imagine the Petitioner had raised his objection to the ballot format before the November 10, 2016 vote. Based on the information in the decision, how might the proceedings and the ultimate outcome have been different?
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official who presides over administrative hearings, hears evidence, and issues decisions and orders. In this case, Tammy L. Eigenheer.
A.R.S. (Arizona Revised Statutes)
The collection of laws enacted by the Arizona state legislature. The Petitioner alleged violations of A.R.S. § 33-1817 and § 33-1812.
Absentee Ballot
A ballot that allows a member to vote without being physically present at a meeting. The format of this ballot was the central issue of the rehearing.
By-Laws
The rules that govern the internal operations of an association. The Petitioner cited a violation of By-Laws Section 8, Article VIII concerning a $50 fine limit.
Department (The Department)
The Arizona Department of Real Estate, the state agency where the Petitioner first filed his petition against the homeowners association.
Master Declaration
A core governing document for a homeowners association that establishes rules, restrictions, and obligations for homeowners. The November 10, 2016 vote was to amend this document.
A formal, binding decision issued by a judge. The final document in this case was an order denying the Petitioner’s petition.
Petitioner
The party who initiates a legal action by filing a petition. In this case, Scott Servilla & Heidi H. Servilla.
Preponderance of the Evidence
The standard of proof required in this proceeding. It means the evidence presented is more convincing and likely to be true than the evidence offered in opposition.
Rehearing
A second hearing of a case granted to reconsider the initial decision. A rehearing was granted after the Petitioner argued that the initial finding of “no remedy” was contrary to law.
Respondent
The party against whom a petition is filed and who must respond to the allegations. In this case, the Village of Oakcreek Association.
Waiver
A legal doctrine where a party intentionally or through inaction gives up a known right or claim. The ALJ ruled the Petitioner waived his right to object to the ballot by not raising the issue before the vote.
Zajac v. City of Casa Grande
An Arizona Supreme Court case that established a key legal precedent used in this decision. It holds that a party cannot knowingly allow a defective vote to proceed and then complain only if the results are unfavorable.
Blog Post – 18F-H1817018-REL-RHG
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{
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{
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{
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{
“name”: “Judy Lowe”,
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},
{
“name”: “L. Dettorre”,
“role”: “ADRE staff”,
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“notes”: “Name derived from email address LDettorre@azre.gov”
},
{
“name”: “A. Hansen”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Name derived from email address AHansen@azre.gov”
},
{
“name”: “D. Jones”,
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“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Name derived from email address djones@azre.gov”
},
{
“name”: “D. Gardner”,
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“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Name derived from email address DGardner@azre.gov”
},
{
“name”: “N. Cano”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Name derived from email address ncano@azre.gov”
},
{
“name”: “c. serrano”,
“role”: “transmission clerk”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Signed document transmission for November 29, 2018 order”
},
{
“name”: “Felicia Del Sol”,
“role”: “transmission clerk”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Signed document transmission for January 9, 2019 order”
}
]
}
{ “case”: { “agency”: “ADRE”, “tribunal”: “OAH”, “docket_no”: “18F-H1817018-REL-RHG”, “case_title”: “Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association”, “decision_date”: “2019-01-09”, “alj_name”: “Tammy L. Eigenheer” }, “parties”: [ { “party_id”: “P1”, “role”: “petitioner”, “name”: “Scott Servilla & Heidi H Servilla”, “party_type”: “homeowner”, “email”: null, “phone”: null, “attorney_name”: null, “attorney_firm”: null, “attorney_email”: null, “attorney_phone”: null }, { “party_id”: “R1”, “role”: “respondent”, “name”: “Village of Oakcreek Association”, “party_type”: “HOA”, “email”: null, “phone”: null, “attorney_name”: “Mark K. Sahl”, “attorney_firm”: “CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP”, “attorney_email”: null, “attorney_phone”: null } ], “issues”: [ { “issue_id”: “ISS-001”, “type”: “statute”, “citation”: “A.R.S. § 33-1812(A)”, “caption”: “Failure to provide separate voting opportunity for each proposed action in absentee ballot”, “violation(s)”: “Written ballot used did not provide a separate opportunity to vote for or against each proposed action, violating A.R.S. § 33-1812(B)(2) and the Declaration12.”, “summary”: “Petitioner alleged the November 10, 2016 vote was invalid because the absentee ballot combined two distinct proposed amendments (Leasing restrictions and Schedule of Fines) into a single vote, contravening the requirement that ballots set forth and provide an opportunity to vote for or against each proposed action1….”, “outcome”: “respondent_win”, “filing_fee_paid”: 500.0, “filing_fee_refunded”: false, “civil_penalty_amount”: 0.0, “orders_summary”: “Claim failed because Petitioner waived the right to object to the faulty ballot by allowing the vote to proceed without objection45.”, “why_the_loss”: “Petitioner was aware of the alleged issue with the ballot prior to the November 10, 2016 vote but failed to raise an objection, thus waiving the right to complain thereafter46.”, “cited”: [ “Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297” ] } ], “money_summary”: { “issues_count”: 3, “total_filing_fees_paid”: 1500.0, “total_filing_fees_refunded”: 0.0, “total_civil_penalties”: 0.0 }, “outcomes”: { “petitioner_is_hoa”: false, “petitioner_win”: “loss”, “summarize_judgement”: “The Administrative Law Judge denied the entire petition, finding that the Petitioner waived the right to challenge the outcome of the November 10, 2016 vote concerning the faulty ballot (Issue 2) because he failed to object before the vote proceeded. Petitioner also failed to prove his claims regarding the required vote count (Issue 1) and unauthorized fines (Issue 3)4….”, “why_the_loss”: “Petitioner waived the right to object to the ballot defect (Issue 2) by allowing the vote to proceed without objection after receiving the ballot, and failed to prove the claims for issues 1 and 34….” }, “analytics”: { “cited”: [ “A.R.S. § 33-1817(A)(1)”, “A.R.S. § 33-1812(B)(2)”, “A.R.S. § 33-1812(A)”, “Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297”, “Allen v. State, 14 Ariz. 458, 130 P. 1114” ], “tags”: [ “HOA elections”, “absentee ballots”, “waiver doctrine”, “amendment procedure”, “fines” ] } }
{ “rehearing”: { “is_rehearing”: true, “base_case_id”: “18F-H1817018-REL”, “original_decision_status”: “affirmed”, “original_decision_summary”: “In the original decision, the Administrative Law Judge found that the Petitioner failed to prove claims regarding issues one and three1. For issue two (faulty ballot), the ALJ established a statutory violation of A.R.S. § 33-1812(B)(2), but concluded that no remedy could be ordered because the statute did not provide an enforcement mechanism1.”, “rehearing_decision_summary”: “The Commissioner granted the rehearing to address the legal conclusion that no remedy could be ordered for the violation found in Issue 22. Following the rehearing, the Administrative Law Judge denied the entire petition3, concluding that Petitioner waived the right to complain about the faulty ballot because he was aware of the alleged issues but allowed the November 10, 2016 vote to proceed without objection4….”, “issues_challenged”: [ { “issue_number”: 2, “description”: “Violation of A.R.S. § 33-1812(B)(2) because the written ballot used did not provide a separate opportunity to vote for or against each proposed action7.”, “challenge”: “Petitioner challenged the original conclusion that no remedy could be ordered, alleging this was contrary to the law and arguing that the Administrative Law Judge was authorized to declare the amendment void and unenforceable28.”, “rehearing_outcome”: “Denied/Failed. The claim failed because the ALJ ruled that Petitioner waived his right to bring forth a complaint about the ballot by allowing the vote to proceed without objection36.” } ] } }
{
“case”: {
“docket_no”: “18F-H1817018-REL-RHG”,
“case_title”: “Scott Servilla & Heidi H Servilla, Petitioner, vs. Village of Oakcreek Association, Respondent.”,
“decision_date”: “January 9, 2019”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Scott Servilla”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: “Also referred to as Scott S. Servilla”
},
{
“name”: “Heidi H Servilla”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Tammy L. Eigenheer”,
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“notes”: null
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{
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“notes”: null
},
{
“name”: “Judy Lowe”,
“role”: “commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: null
},
{
“name”: “c. serrano”,
“role”: “staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted documents”
},
{
“name”: “Felicia Del Sol”,
“role”: “staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted documents”
}
]
}
This document summarizes the administrative law judge decision in the rehearing case of Scott Servilla & Heidi H Servilla v. Village of Oakcreek Association, Case No. 18F-H1817018-REL-RHG1. This matter was heard by Administrative Law Judge Tammy L. Eigenheer on November 29, 2018, with the record held open until December 20, 20181.
Procedural History (Original Decision vs. Rehearing)
Petitioner Scott Servilla filed a petition with the Arizona Department of Real Estate (ADRE) against the Village of Oakcreek Association (Respondent) alleging multiple violations of statute and the community’s Master Declaration2,3.
Original Decision: The Administrative Law Judge initially ruled on three issues4. The ALJ found that Petitioner failed to prove two claims5. However, the ALJ found that the Respondent violated A.R.S. § 33-1812(B)(2) regarding the written ballot, but concluded that because the statute did not provide an enforcement mechanism, no remedy could be ordered5.
Rehearing Grant: Following this initial decision, Petitioner filed a Request for Reconsideration, arguing the conclusion that no remedy existed was contrary to law6. The ADRE Commissioner granted the request for rehearing6.
Key Facts and Issue for Rehearing
The central issue during the rehearing concerned the statutory violation found in the original decision: whether the November 10, 2016 vote to amend the Master Declaration was invalid because the absentee ballot failed to comply with A.R.S. § 33-1812(A)4,7.
The Ballot Violation: A.R.S. § 33-1812(A) requires that absentee ballots set forth “each proposed action” and provide an opportunity to vote for or against “each proposed action”7. The Respondent’s proposed amendment bundled two distinct actions: the addition of leasing restrictions and the complete replacement of the Schedule of Fines8,9,10. The ballot only allowed members to vote “FOR” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT” as a single package9.
Key Legal Argument and Decision
At the rehearing, the core legal debate shifted from whether a violation occurred to whether the Petitioner was entitled to relief, specifically whether the ALJ could declare the amendment void and unenforceable6,11.
Respondent’s Defense and the Doctrine of Waiver: Respondent argued that Petitioner had waived the right to object because he did not raise any complaint about the defective ballot prior to the vote12. Petitioner received the ballot more than one month before the November 10, 2016 vote13.
ALJ Legal Conclusion: Drawing on Arizona Supreme Court precedent (Zajac v. City of Casa Grande)10,14, the Administrative Law Judge concluded that an individual cannot allow a known defective vote to proceed and only complain afterward if dissatisfied with the results15,16. Because Petitioner failed to raise an objection to the faulty ballot prior to the scheduled vote, he waived his right to bring a subsequent complaint about the ballot16.
Based on the application of the waiver doctrine, the ALJ found that Petitioner’s claim as to the ballot must fail16. The Administrative Law Judge ordered that Petitioner’s petition is denied17. This order, resulting from the rehearing, is binding on the parties17.
{
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“docket_no”: “18F-H1817018-REL-RHG”,
“case_title”: “Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association”,
“decision_date”: “2019-01-09”,
“alj_name”: “Tammy L. Eigenheer”
},
“parties”: [
{
“party_id”: “P1”,
“role”: “petitioner”,
“name”: “Scott Servilla & Heidi H Servilla”,
“party_type”: “homeowner”,
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{
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}
],
“issues”: [
{
“issue_id”: “ISS-001”,
“type”: “statute”,
“citation”: “A.R.S. § 33-1817(A)(1)”,
“caption”: “Vote count required to amend declaration”,
“violation(s)”: “Alleged violation of A.R.S. § 33-1817(A)(1) and Declaration regarding the required majority vote (1173 votes) for the November 10, 2016 amendment.”,
“summary”: “Petitioner requested an order declaring the amendment invalid due to insufficient vote count.”,
“outcome”: “respondent_win”,
“filing_fee_paid”: 500.0,
“filing_fee_refunded”: false,
“civil_penalty_amount”: 0.0,
“orders_summary”: “Claim failed.”,
“why_the_loss”: “Petitioner failed to prove the claim.”,
“cited”: []
},
{
“issue_id”: “ISS-002”,
“type”: “statute”,
“citation”: “A.R.S. § 33-1812(A)”,
“caption”: “Absence of separate voting opportunity for proposed actions”,
“violation(s)”: “The written ballot used for the November 10, 2016 amendment violated A.R.S. § 33-1812(A) and (B)(2) because it bundled two distinct proposed actions (Leasing Restrictions and Schedule of Fines) into a single vote.”,
“summary”: “Petitioner sought an order declaring the amendment invalid because the ballot improperly required a single vote on two separate actions.”,
“outcome”: “respondent_win”,
“filing_fee_paid”: 500.0,
“filing_fee_refunded”: false,
“civil_penalty_amount”: 0.0,
“orders_summary”: “Claim denied on rehearing. Petition denied.”,
“why_the_loss”: “Petitioner waived the right to object to the faulty ballot by receiving it over a month prior and allowing the vote to proceed on November 10, 2016, without raising a complaint.”,
“cited”: [
“A.R.S. § 33-1812(A)”,
“Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297”,
“Allen v. State, 14 Ariz. 458, 130 P. 1114”
]
},
{
“issue_id”: “ISS-003”,
“type”: “governing_document”,
“citation”: “By-Laws Section 8, Article VIII”,
“caption”: “Unauthorized fines in excess of $50”,
“violation(s)”: “Respondent allegedly violated By-Laws by imposing fines in excess of $50 per violation, especially after a proposed amendment to raise the fines was voted down.”,
“summary”: “Petitioner requested an order that the Association cannot levy fines in excess of $50 per violation.”,
“outcome”: “respondent_win”,
“filing_fee_paid”: 500.0,
“filing_fee_refunded”: false,
“civil_penalty_amount”: 0.0,
“orders_summary”: “Claim failed.”,
“why_the_loss”: “Petitioner failed to prove the claim.”,
“cited”: []
}
],
“money_summary”: {
“issues_count”: 3,
“total_filing_fees_paid”: 1500.0,
“total_filing_fees_refunded”: 0.0,
“total_civil_penalties”: 0.0
},
“outcomes”: {
“petitioner_is_hoa”: false,
“petitioner_win”: “loss”,
“summarize_judgement”: “The Administrative Law Judge denied the entire petition. Although the Respondent used a faulty ballot (Issue 2), the Petitioner waived the right to object by failing to raise a complaint prior to the vote. Petitioner also failed to prove his claims for issues 1 and 3.”,
“why_the_loss”: “Petitioner waived the right to object to the ballot defect (Issue 2) by allowing the vote to proceed without objection, and failed to prove the claims for Issues 1 and 3.”,
“cited”: [
“A.R.S. § 33-1812(A)”,
“Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297”
]
},
“analytics”: {
“cited”: [
“A.R.S. § 33-1817(A)(1)”,
“A.R.S. § 33-1812(A)”,
“A.R.S. § 33-1812(B)(2)”,
“Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297”,
“Allen v. State, 14 Ariz. 458, 130 P. 1114”
],
“tags”: [
“HOA elections”,
“absentee ballots”,
“waiver doctrine”,
“amendment procedure”,
“fines”
]
}
}
{
“case”: {
“docket_no”: “18F-H1817018-REL-RHG”,
“case_title”: “Scott Servilla & Heidi H Servilla, vs. Village of Oakcreek Association”,
“decision_date”: “2019-01-09”,
“tribunal”: “OAH”,
“agency”: “ADRE”
},
“individuals”: [
{
“name”: “Scott Servilla”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: “Appeared on his own behalf at the hearing; also listed as Scott S. Servilla [1], [2]”
},
{
“name”: “Heidi H Servilla”,
“role”: “petitioner”,
“side”: “petitioner”,
“affiliation”: null,
“notes”: null
},
{
“name”: “Tammy L. Eigenheer”,
“role”: “ALJ”,
“side”: “neutral”,
“affiliation”: “Office of Administrative Hearings”,
“notes”: “Administrative Law Judge [3], [4], [1], [2]”
},
{
“name”: “Mark K. Sahl”,
“role”: “HOA attorney”,
“side”: “respondent”,
“affiliation”: “CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP”,
“notes”: “Represented Village of Oakcreek Association [2]”
},
{
“name”: “Judy Lowe”,
“role”: “commissioner”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Granted the request for rehearing [5]”
},
{
“name”: “c. serrano”,
“role”: “staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted documents on November 29, 2018 [6], [7]”
},
{
“name”: “Felicia Del Sol”,
“role”: “staff”,
“side”: “unknown”,
“affiliation”: null,
“notes”: “Transmitted documents on January 9, 2019 [8]”
},
{
“name”: “LDettorre”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
},
{
“name”: “AHansen”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
},
{
“name”: “djones”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
},
{
“name”: “DGardner”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
},
{
“name”: “ncano”,
“role”: “ADRE staff”,
“side”: “neutral”,
“affiliation”: “Arizona Department of Real Estate”,
“notes”: “Recipient of transmittal [3], [4]”
}
]
}
Case Participants
Petitioner Side
Scott Servilla(petitioner) Also referred to as Scott S. Servilla
Heidi H Servilla(petitioner)
Respondent Side
Mark K. Sahl(attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(commissioner) Arizona Department of Real Estate
