Green Valley Country Club Vistas II Property Owner's Association
Counsel
James A. Robles
Alleged Violations
A.R.S. § 33-1802(4)
Outcome Summary
The petition was dismissed with prejudice upon rehearing because the Administrative Law Judge confirmed that the Respondent HOA did not meet the statutory definition of a 'planned community,' thereby depriving the OAH and ADRE of subject matter jurisdiction.
Why this result: The ALJ narrowly interpreted the statutory term 'roadway' to mean the part of the road intended for vehicles, excluding the landscaping maintenance performed by the HOA.
Key Issues & Findings
Subject Matter Jurisdiction: Planned Community Status
This issue was heard on rehearing. Petitioner argued that the maintenance of entrance landscaping constituted maintaining 'roadways' by interpreting the statutory term broadly, citing the 'Complete Streets' approach and Pima County right-of-way documents. The ALJ affirmed the original decision, holding that the plain meaning of 'roadway' is the part of the road intended for vehicles, not the entire right-of-way, and thus jurisdiction was lacking.
Orders: Petitioner’s petition is dismissed with prejudice because the Office of Administrative Hearings and the Arizona Department of Real Estate lack subject matter jurisdiction over the dispute.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1802
Ariz. Bd. of Regents for & on Behalf of Univ. of Ariz. v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150, 156 (App. 1989)
Swichtenberg v. Jack Brimer, 171 Ariz. 77, 828 P.2d 1218 (App. 1991)
Villa De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, 95 (App. 2011)
Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 561 (App. 1993)
Sunrise Desert Vistas v. Salas, 1 CA-CV 14-052 (Ct. App. 2016)
Ariz. Bd. of Regents for & on Behalf of Univ. of Ariz. v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150, 156 (App. 1989)
Swichtenberg v. Jack Brimer, 171 Ariz. 77, 828 P.2d 1218 (App. 1991)
Villa De Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, 95 (App. 2011)
Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 561 (App. 1993)
Sunrise Desert Vistas v. Salas, 1 CA-CV 14-052 (Ct. App. 2016)
Decision Documents
18F-H1817022-REL Decision – 661827.pdf
Uploaded 2025-12-17T18:16:14 (130.3 KB)
Case Participants
Petitioner Side
Thomas P. Satterlee(petitioner)
Respondent Side
James A. Robles(HOA attorney) Perry, Childers, Hanlon & Hudson, PLC
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Felicia Del sol(staff/clerk) Staff responsible for decision distribution
Other Participants
Ana M. Olivares(Director) Pima County Transportation Authored May 18, 2018 letter presented as documentation by Petitioner
The ALJ granted the petition, finding that the HOA Board violated ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws by amending the Bylaws on November 20, 2017, without a quorum of Association members voting in favor and without proper notice. The amendment was invalidated, and the HOA was fined $250.00 and ordered to refund the Petitioner's filing fee.
Why this result: The Board lacked the authority to amend the Bylaws without the vote of the Association membership, and failed to provide required notice for the proposed amendment, violating ARIZ. REV. STAT. § 33-1804(B) and the Association Bylaws.
Key Issues & Findings
Whether Sycamore Vista No. 8 Homeowners Association violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.
The Respondent HOA Board amended Association Bylaws on November 20, 2017, without proper notice to the members and without a vote by a majority of Association members, which violated the statutory notice requirement and the Bylaws. The Board action was consequently invalidated.
Orders: The Petitioner's petition was granted. The Respondent's third amendment to the Association Bylaws, dated November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner's filing fee and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
Mail Boxes v. Indus. Comm’n of Ariz., 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)
Video Overview
Audio Overview
Decision Documents
19F-H1918001-REL Decision – 661797.pdf
Uploaded 2025-12-09T10:04:41 (143.2 KB)
19F-H1918001-REL Decision – 696205.pdf
Uploaded 2025-10-09T03:33:14 (169.8 KB)
Briefing Doc – 19F-H1918001-REL
Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Jay A. Janicek v. Sycamore Vista No. 8 Homeowners Association (No. 19F-H1918001-REL-RHG). The central issue was the validity of a bylaw amendment enacted by the Association’s Board of Directors on November 20, 2017, without a vote of the general homeowner membership.
The ALJ ruled decisively in favor of the Petitioner, Jay Janicek, finding that the Board’s action was invalid. The decision hinged on a critical interpretation of the Association’s governing documents, concluding that the term “members” in the context of bylaw amendments unambiguously refers to the homeowner membership, not the Board of Directors. The ruling established that the Board does not have the authority to amend bylaws where that power is reserved for the membership.
Furthermore, the ALJ concluded that the Board’s action violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by failing to provide the required notice to homeowners for a meeting concerning a proposed bylaw amendment. As a result, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.
Case Background and Procedural History
Parties and Jurisdiction
• Petitioner: Jay A. Janicek, a property owner within the Sycamore Vista subdivision and a member of the Respondent Association.
• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”), a homeowners’ association in Tucson, Arizona, governed by its Covenants, Conditions, and Restrictions (CC&Rs) and overseen by a Board of Directors.
• Adjudicating Body: The Arizona Office of Administrative Hearings (OAH), an independent state agency, which received the case on referral from the Arizona Department of Real Estate.
The Central Dispute
The core of the dispute was an action taken by the Association’s Board of Directors during a regular meeting on November 20, 2017. At this meeting, the Board, with three of five directors present, voted to approve a third amendment to the Association’s Bylaws. The amendment altered Article VIII Section 6(d), changing the requirement for an annual financial check from:
“cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year”
“cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”
The Petitioner contended this action was invalid because it was undertaken without a vote of the general Association membership, as he believed the governing documents required.
Timeline of Adjudication
1. July 25, 2018: Petitioner files a petition with the Arizona Department of Real Estate.
2. September 05, 2018: An initial evidentiary hearing is held before the OAH.
3. September 25, 2018: The OAH issues an ALJ Decision in the Petitioner’s favor.
4. October 23, 2018: The Respondent submits a Request for Rehearing.
5. November 07, 2018: The Department grants the rehearing request and refers the matter back to the OAH.
6. March 05, 2019: A rehearing is conducted, based on legal briefs and closing arguments without new evidence.
7. March 25, 2019: The final ALJ Decision is issued, reaffirming the initial ruling in favor of the Petitioner.
Analysis of Governing Documents and Statutes
The case decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state statutes.
Key Bylaw Provisions
Article
Section
Description
Article IV
Section 1
States that the “affairs of this Association shall be managed by a Board of not less than three (3) nor more than five (5) directors.”
Article VI
Section 1
Establishes that regular meetings of the Board of Directors shall be held monthly without notice.
Article VI
Section 2
Governs special meetings of the Board, requiring not less than three days’ notice to each Director.
Article VI
Section 3
Defines a quorum for Board meetings as “a majority of the number of Directors.”
Article VII
Section 1
Outlines the Powers and Duties of the Board of Directors. This section does not explicitly grant the Board the power to amend the Bylaws.
Article XIII
Section 1
(The central provision in the dispute) States: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.”
Relevant Arizona Statutes
• A.R.S. § 33-1804 (Open Meeting Law): This statute was central to the Petitioner’s argument and the ALJ’s final decision.
◦ Subsection (A): Requires that all meetings of the members’ association and the board of directors be open to all members of the association.
◦ Subsection (B): Mandates specific notice requirements for any meeting of the members, stating that notice “shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws.”
◦ Subsection (F): The ALJ noted that this section codifies the legislative intent of the statute, which, as cited from a Governor’s message, is to “promote transparency and participation for all residents in homeowners’ association governance.”
Arguments of the Parties
Petitioner’s Position (Jay Janicek)
The Petitioner’s case was built on a textual interpretation of the Bylaws and adherence to state law.
• Interpretation of “Members”: The Petitioner argued that the word “members” in Article XIII, Section 1 refers to the general homeowner membership of the Association, not the members of the Board of Directors.
• Textual Differentiation: The drafters of the Bylaws intentionally used the words “members” and “directors” distinctly throughout the document. Where the intent was to refer to the Board, the word “Director” was specifically used (e.g., Article VI).
• Proxy Voting: The inclusion of the term “proxy” in Article XIII supports the argument that the vote is for the general membership, as Board members are not permitted to vote by proxy.
• Lack of Explicit Power: Article VII, which details the Board’s powers, does not grant the authority to amend the Bylaws, implying such power is reserved for the membership.
• Statutory Violation: The Board’s action violated A.R.S. § 33-1804 because the required notice for a meeting concerning a bylaw amendment was not provided to the general membership.
• Legal Precedent: The Petitioner cited Powell v. Washburn, an Arizona Supreme Court case holding that restrictive covenants (which he argued include the Bylaws) should be interpreted to give effect to the intention of the parties as determined from the entire document.
Respondent’s Position (Sycamore Vista No. 8 HOA)
The Association argued that its actions were a valid exercise of the Board’s authority.
• Broad Authority: The Respondent cited Article IV, which states the “affairs of this Association shall be managed by a Board,” to assert its general authority.
• Valid Board Meeting: The amendment occurred at a regular monthly Board meeting as allowed by Article VI. The meeting had three directors present, which constituted a valid quorum for transacting business.
• Interpretation of Article XIII: The Respondent argued that the phrase “at a regular or special meeting of the Board of Directors” in Article XIII indicates that the Board is the body empowered to make the amendment, and the word “members” in that context refers to the members of the Board.
• No Open Meeting Law Violation: The Respondent contended its conduct was not a violation because the action occurred during a regular Board meeting with a proper quorum of directors.
Administrative Law Judge’s Decision and Rationale
The ALJ’s conclusions were unequivocal, fully adopting the Petitioner’s interpretation of the governing documents and state law.
Conclusions of Law
• Burden of Proof: The ALJ found that the Petitioner successfully sustained his burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804.
• Interpretation of “Members” vs. “Directors”: The decision states that the governing documents are clear: “‘members’ refers to the body of owners who make up the membership of the Association, and ‘directors’ refers to the few who are elected to the membership’s Board.” The ALJ found the differentiation to be intentional by the drafters.
• Avoiding Absurdity: The decision holds that construing the Bylaws to allow the Board to amend them would create an absurdity. The ALJ wrote, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”
• Violation of Statute and Bylaws: The ALJ concluded that the Board’s action on November 20, 2017, violated both A.R.S. § 33-1804(B) due to a lack of notice and Article III of the Association Bylaws.
• Rejection of Respondent’s Argument: The decision explicitly states, “The Tribunal is not swayed by Respondent’s closing arguments.”
Final Order
Based on the findings and conclusions, the ALJ issued the following binding order:
1. Petition Granted: The Petitioner’s petition was officially granted.
2. Amendment Invalidated: The third amendment to the Association Bylaws, as enacted on November 20, 2017, was invalidated.
3. Fees and Penalties: The Respondent was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 to the Planned Community Hearing Office Fund.
Study Guide – 19F-H1918001-REL
Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association
Short-Answer Quiz
1. Who were the primary parties in the case No. 19F-H1918001-REL-RHG, and what were their respective roles?
2. What specific action taken by the Respondent on November 20, 2017, prompted the Petitioner to file a complaint?
3. According to the Petitioner, what was the crucial difference in meaning between the terms “members” and “directors” as used in the Association’s Bylaws?
4. What was the Respondent’s central argument for why the Board of Directors had the authority to amend the Bylaws at its regular meeting?
5. What is Arizona’s Open Meeting Law, and how did the Petitioner argue that the Respondent violated it?
6. What was the financial concern that the Petitioner argued could potentially impact him as a homeowner due to the Board’s amendment?
7. Describe the procedural history of this case after the initial Administrative Law Judge (ALJ) Decision on September 25, 2018.
8. What case did the Petitioner cite regarding the interpretation of restrictive covenants, and what principle did it establish?
9. What is the legal standard of proof required in this proceeding, and how is it defined in the document?
10. What was the final outcome of the case, including the specific orders issued by the Administrative Law Judge?
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Answer Key
1. The primary parties were Jay A. Janicek, the Petitioner, and the Sycamore Vista No. 8 Homeowners Association, the Respondent. The Petitioner is a property owner and member of the Association who brought the legal action, while the Respondent is the homeowners’ association governed by a Board of Directors.
2. On November 20, 2017, the Respondent’s Board of Directors held a regular meeting where they voted to approve a third amendment to the Association’s Bylaws. This amendment changed the requirement for an “annual audit…by a public accountant” to an “annual audit, review, or compilation” of financial records.
3. The Petitioner argued that the term “members” in Article XIII of the Bylaws refers to the entire body of property owners in the Association, not the Board of Directors. He contended that if the drafter had intended to give amendment power to the Board, the specific word “directors” would have been used, as it was in other sections of the Bylaws.
4. The Respondent argued that its actions were proper because the Bylaws empower the Board to manage the Association’s affairs at regular monthly meetings. They contended that since a quorum of three directors was present at the November 20, 2017 meeting, the Board was empowered to transact business, which they interpreted to include amending the bylaws as described in Article XIII.
5. Arizona’s Open Meeting Law is ARIZ. REV. STAT. § 33-1804, which requires meetings of a homeowners’ association’s board and members to be open to all members. The Petitioner argued the Respondent violated this by amending a bylaw without proper notice to the full membership, which is required for any proposed bylaw amendment, thus undermining the law’s legislative intent of transparency.
6. The Petitioner was concerned that the amendment weakened the financial oversight of the Association. It modified a requirement for a third-party audit to a less stringent “review, or compilation,” creating a risk that the Association could perform its own financial checks, and as a homeowner, he had an interest in ensuring the Association’s financials were correct.
7. After the initial decision in the Petitioner’s favor on September 25, 2018, the Respondent submitted a Request for Rehearing on October 23, 2018. The Department of Real Estate granted this request on November 7, 2018, and the matter was referred back to the Office of Administrative Hearings for a rehearing, which ultimately took place on March 5, 2019.
8. The Petitioner cited Powell v. Washburn. This case established the principle that restrictive covenants should be interpreted to give effect to the intention of the parties, as determined from the language of the entire document and the purpose for which the covenants were created.
9. The legal standard of proof was a “preponderance of the evidence.” The document defines this 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” that inclines an impartial mind to one side of an issue.
10. The final outcome was a ruling in favor of the Petitioner. The ALJ granted the petition, invalidated the third amendment to the Bylaws that was passed on November 20, 2017, and ordered the Respondent to pay the Petitioner’s filing fee and a civil penalty of $250.00.
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Essay Questions
1. Analyze the Administrative Law Judge’s reasoning in differentiating between the terms “members” and “directors.” How did the principle of avoiding absurdity and considering the drafter’s intent, as seen throughout the Bylaws, contribute to the final decision?
2. Discuss the interplay between the Association’s governing documents (CC&Rs and Bylaws) and state law (ARIZ. REV. STAT. § 33-1804). Explain which authority took precedence in this case and why the Board’s actions were found to violate both.
3. Evaluate the legal strategy employed by the Petitioner, Jay A. Janicek. Consider his use of specific Bylaw articles, the citation of Powell v. Washburn, and his argument regarding the legislative intent of the Open Meeting Law.
4. Examine the arguments presented by the Respondent, Sycamore Vista No. 8 Homeowners Association. Why did the Judge find their interpretation of the Bylaws unconvincing, despite their claims that the Board was empowered to transact business with a quorum present?
5. Based on the text, discuss the broader implications of this ruling for homeowners’ associations in Arizona. How does this decision reinforce the principles of transparency and the limitations of a Board’s power relative to the association’s general membership?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An independent judge, in this case Jenna Clark, who presides over administrative hearings at the Office of Administrative Hearings (OAH).
ARIZ. REV. STAT. § 33-1804
A section of the Arizona Revised Statutes, also known as Arizona’s Open Meeting Law, which mandates that meetings of an HOA’s members and board of directors must be open to all members and requires specific notice for meetings where bylaw amendments will be considered.
Bylaws
A set of rules that govern the internal operations of the homeowners’ association. In this case, key articles discussed include Article VI (Meeting of Directors), Article VII (Powers of the Board), and Article XIII (Amendments).
Covenants, Conditions, and Restrictions. These are governing documents that form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.
Member
As defined in the Association’s documents, a person entitled to membership by virtue of being a property owner within the Sycamore Vista subdivision. The Judge concluded this term refers to the body of owners, not the Board of Directors.
Office of Administrative Hearings (OAH)
An independent state agency in Arizona, unaffiliated with the parties, responsible for conducting evidentiary hearings and making legal decisions in disputes like this one.
Petitioner
The party who files a petition initiating a legal case. In this matter, the Petitioner was Jay A. Janicek, a homeowner in the Association.
Preponderance of the evidence
The burden of proof in this case. It is defined as evidence that is more likely true than not and has the most convincing force, sufficient to incline a fair and impartial mind to one side of an issue.
The authority to represent someone else, especially in voting. The document notes that the term “proxy” applies to votes of the members, as members of the Board are not permitted to vote by proxy.
Quorum
The minimum number of members of a deliberative assembly necessary to conduct the business of that group. For the Respondent’s Board of Directors, a quorum is defined as a majority of the number of Directors.
Respondent
The party against whom a petition is filed. In this matter, the Respondent was the Sycamore Vista No. 8 Homeowners Association.
Restrictive Covenants
Legal obligations imposed in a deed to real property to do or not do something. The Petitioner argued this term included the CC&Rs, Bylaws, and rules of the Association.
Tribunal
A body established to settle certain types of dispute. In this document, it refers to the Administrative Law Judge at the Office of Administrative Hearings.
Blog Post – 19F-H1918001-REL
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19F-H1918001-REL-RHG
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The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Jay A. Janicek (Petitioner) and the Sycamore Vista No. 8 Homeowners Association (Respondent). The core issue of the case, designated No. 19F-H1918001-REL-RHG, revolves around whether the Homeowners Association violated its Bylaws and Arizona state statute (§ 33-1804) when its Board of Directors unilaterally amended the Bylaws on November 20, 2017. The Administrative Law Judge determined that the Board’s action was invalid because the power to amend the Bylaws was delegated to the Association’s general membership, not the Board of Directors, and the Board failed to provide the required notice for such an amendment. Consequently, the Petitioner’s request was granted, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty.
What central conflict drove the administrative hearing and subsequent rehearing process?
How did governing documents and Arizona statutes shape the final legal decision?
What ultimate implications does this ruling have for homeowners association governance and member rights?
Based on 1 source
Case Participants
Petitioner Side
Jay A. Janicek(petitioner) Appeared on his own behalf at initial hearing; Observed rehearing
Jake Kubert(petitioner attorney) Dessaules Law Group Appeared at rehearing
Patricia Davies-Brown, Individually and as Trustee of the Trust; BART A. BROWN, JR.; SCOTT R. DAVIES
Counsel
—
Respondent
Starwood Estates Homeowners Association
Counsel
Daniel Campbell & Kristopher L. Smith
Alleged Violations
CC&Rs; Bylaws; Architectural Guidelines
Outcome Summary
The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.
Why this result: Petitioners failed to establish by a preponderance of the evidence that Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.
Key Issues & Findings
Violation of Exterior Appearance and Colors provisions regarding copper-colored metal roof approval
Petitioners alleged that the HOA improperly approved a copper-colored metal roof because it constituted a reflective surface and did not blend with the natural surroundings, violating the community documents. The ALJ denied the petition, finding Petitioners failed to establish by a preponderance of the evidence that the HOA violated its documents, noting the reflective surfaces ban applied to windows and doors, not roofs, and the roof's appearance was acceptable.
Orders: Petitioners' petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Briefing Document: Davies-Brown v. Starwood Estates HOA
Executive Summary
This document summarizes the administrative hearing and decision in case No. 18F-H1818039-REL, concerning a dispute between homeowners Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies (the “Petitioners”) and the Starwood Estates Homeowners Association (the “Respondent”). The core of the dispute was the HOA Board of Directors’ 2013 approval of a copper-colored metal roof for homeowners Jeff and Karen Martin.
The Petitioners alleged this approval violated the community’s CC&Rs, Bylaws, and Architectural Guidelines. Their primary arguments were that the roof was an impermissible “reflective surface,” that it did not “blend with the natural surrounding and landscape,” and that the Board lacked the authority to approve it without prior review by the Architectural Committee (ACC) and without viewing a physical sample.
The Respondent defended the Board’s decision, arguing that the Board possessed the authority to grant such approvals. They contended the prohibition on reflective surfaces in the community guidelines applies specifically to windows and doors, not roofing. Furthermore, they asserted that the roof was aesthetically compliant and that other reflective metal roofs exist within the community.
The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Respondent. The decision, issued on September 14, 2018, denied the petition, concluding that the Petitioners failed to meet their burden of proof. The ALJ found that the Board had the authority to approve the roof, the ban on reflective surfaces did not apply to roofing, and the Petitioners did not establish that the roof failed to blend with its natural surroundings.
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Case Overview
• Case Name: Patricia Davies-Brown, et al. vs. Starwood Estates Homeowners Association
• Case Number: 18F-H1818039-REL
• Forum: Arizona Office of Administrative Hearings
• Presiding Judge: Velva Moses-Thompson, Administrative Law Judge
• Hearing Dates: July 10, 2018, and August 13, 2018
• Final Decision Date: September 14, 2018
Key Parties and Representatives
Name(s)
Representation / Contact
Petitioners
Patricia Davies-Brown, Bart A. Brown, Jr., Scott R. Davies
Appeared on behalf of themselves 9777 E Dreyfus Ave., Scottsdale, AZ 85260 Pat.davies-brown@cox.net
Respondent
Starwood Estates Homeowners Association
Kristopher L. Smith, Esq. O’Connor & Campbell, P.C. 7955 S Priest Dr., Tempe, AZ 85284 kris.smith@occlaw.com
Homeowners
Jeff and Karen Martin
Owners of the property with the disputed roof at 8500 Skywood Drive, Pinetop, Arizona (Lot 40 of Starwood Estates).
Core Dispute: The Martin Residence Roof
The central conflict originated in the summer of 2013 when the Starwood Estates Board of Directors approved a request from Jeff and Karen Martin to install a copper-colored metal roof on their home. The approval was passed by a 5-1 vote. Petitioner Scott R. Davies was the sole board member who voted against the approval at that time.
The Board reviewed a brochure containing the roof’s color before granting approval but did not observe a physical sample. However, one Board member, Pat Knight, was reportedly familiar with the appearance of such roofs from a previous home she owned nearby. The petition challenging this 2013 decision was filed on or about March 26, 2018.
Petitioners’ Allegations and Arguments
The Petitioners filed their petition with the Arizona Department of Real Estate, alleging that the HOA violated community governing documents. Their case was built on three central questions:
1. Does the exterior appearance of the Martins’ aluminum copper-colored metal roof blend with the “natural surrounding and landscape” of Starwood Estates?
2. Does such roof constitute a “reflective surface”?
3. If the answer to (1) above is no and/or the answer to (2) above is yes, did the ACC and the Board of Starwood Estates erroneously violate the provisions of the CC&R’s and GUIDELINES in permitting the Martins to install such aluminum copper-colored metal roof…?
During the hearing, the Petitioners expanded on these points, arguing:
• Reflective Surface: The copper-colored roof was a prohibited reflective surface under the Architectural Guidelines.
• Aesthetic Incompatibility: The roof did not blend with the natural surroundings as required.
• Procedural Violations:
◦ The Board violated the CC&Rs by approving the roof without first viewing a physical sample of the material.
◦ The approval was invalid because it should have first been granted by the two-person Architectural Committee (ACC) appointed by the Board.
Respondent’s Defense and Arguments
The Starwood Estates HOA maintained that its approval of the Martin roof was proper and compliant with all governing documents. Their key arguments were:
• Board Authority: The HOA asserted that either the Board of Directors or the Architectural Committee had the authority to approve the roof.
• Interpretation of “Reflective Surfaces”: The Respondent argued that the prohibition on “reflective surfaces” within the Architectural Guidelines applies specifically to windows and doors, not to roofing, which is addressed in a separate section of the guidelines.
• Aesthetic Compliance: They contended the roof, while having a “shine,” was not a barred reflective surface and did blend in with the natural surroundings.
• Precedent: The HOA noted that several other metal roofs that are reflective had been previously approved in Starwood Estates. They submitted images of reflective green and red roofs in the Pinetop Country Club area as evidence.
Referenced Governing Documents
The decision cited specific sections from the HOA’s governing documents to adjudicate the dispute.
• Section 3.1.4: Requires prior written approval from the Architectural Committee for any work that alters the exterior appearance of a Lot.
• Section 5.2: States that approvals or actions to be taken by the Association “shall be valid if given or taken by the Board.”
• Article VII, Section A(2): Grants the Board authority to exercise all powers and duties vested in the Association unless reserved to the membership.
• Article VII, Section B: Empowers the Board to “Review and approve any architectural plan for the building of any improvements on any Lots.”
• Exterior Appearance and Colors: Mandates that exterior appearance “shall blend with the natural surroundings and landscape.” It also states, “Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.” A note requires the owner to submit samples of materials for ACC approval.
• Roofs, Materials, and Pitches: Stipulates that “Metal roofs are permitted only with ACC approval” and that all pitched roof materials “shall promote a continuity of texture and color.”
Evidence Presented
• Petitioner’s Exhibit 13: A photograph of the Martins’ copper-colored roof. The ALJ’s decision noted that while the image showed a reflection, the photograph itself was “blurred.”
• Respondent’s Exhibit 26: The brochure containing the color of the copper-colored roof that the Board reviewed before its 2013 approval.
• Respondent’s Exhibit 7: Images of other reflective green and red metal roofs located in the Pinetop Country Club area, which were previously approved.
• Testimony: Board member Pat Knight’s familiarity with the appearance of copper-colored roofs was noted.
Administrative Law Judge’s Decision and Rationale
The petition was denied. The ALJ found that the Petitioners failed to establish by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.
Conclusions of Law
1. Burden of Proof: The Petitioners bore the burden of proving their claims by a “preponderance of the evidence,” defined as evidence that is more probably true than not. They failed to meet this standard.
2. Board Authority: The ALJ concluded that the governing documents allowed for the roof to be approved by either the Architectural Committee or the Board of Directors. The Board’s action was therefore valid.
3. Interpretation of Reflective Surfaces: The evidence established that the prohibition on “reflective surfaces” in the Architectural Guidelines applies to windows and doors. Roofs are addressed in a separate section of the guidelines. The existence of other approved shiny metal roofs further supported this interpretation.
4. Aesthetic Compliance: The Petitioners did not provide sufficient evidence to prove that the copper-colored roof failed to blend in with the natural surroundings.
Final Order
IT IS ORDERED that Petitioners’ petition is denied because Petitioners have not established that Respondent violated the Community Bylaws, Community CC&Rs, and the Community Architectural Guidelines when Respondent approved the Martins’ request to install the copper-colored roof.
The order was made binding unless a rehearing was requested within 30 days of service.
Study Guide – 18F-H1818039-REL
Study Guide: Davies-Brown v. Starwood Estates HOA (Case No. 18F-H1818039-REL)
This guide provides a comprehensive review of the administrative hearing case between Patricia Davies-Brown, et al., and the Starwood Estates Homeowners Association. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the provided legal documents.
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Short-Answer Quiz
Answer the following questions in two to three sentences, drawing exclusively from the information presented in the case documents.
1. Who were the primary parties involved in Case No. 18F-H1818039-REL?
2. What specific architectural feature was the central point of the dispute?
3. What were the three main questions the Petitioners raised in their petition filed on March 26, 2018?
4. How did the Respondent (Starwood Estates HOA) justify the approval of other reflective metal roofs in the community?
5. According to the Petitioners, which two procedural errors did the Board of Directors commit when approving the Martins’ roof?
6. What was the Administrative Law Judge’s conclusion regarding the prohibition of “reflective surfaces” in the Architectural Guidelines?
7. What is the legal standard of proof the Petitioners were required to meet, and did they succeed?
8. Which governing documents grant the Board of Directors the authority to approve architectural plans?
9. When was the disputed roof originally approved by the Board, and what was the vote count?
10. What evidence did the Board review before its initial approval, and what evidence was not reviewed at that time?
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Answer Key
1. The Petitioners were Patricia Davies-Brown (Individually and as Trustee of the Trust), Bart A. Brown, Jr., and Scott R. Davies. The Respondent was the Starwood Estates Homeowners Association.
2. The central dispute was an aluminum, “copper-colored metal roof” installed by homeowners Jeff and Karen Martin on their property at Lot 40 of Starwood Estates. The Petitioners challenged the HOA Board’s approval of this roof.
3. The Petitioners’ petition questioned whether the roof blended with the “natural surrounding and landscape,” whether it constituted a “reflective surface,” and if so, whether the Board and ACC violated the CC&Rs and Guidelines by permitting it.
4. The Respondent submitted evidence of other reflective green and red metal roofs within the Pinetop Country Club area that had been previously approved by the Board. This was used to argue that roofs with a shine were not explicitly barred.
5. The Petitioners contended the Board violated the CC&Rs by approving the roof without first viewing a physical sample. They also argued that the roof required approval from the two-person Architectural Committee (ACC) and could not be approved by the Board alone.
6. The Judge concluded that the bar on reflective surfaces, as written in the Architectural Guidelines, applies specifically to windows and doors. Roofs are addressed in a separate section of the guidelines that does not contain the same prohibition.
7. The Petitioners bore the burden of proof to establish their case by a “preponderance of the evidence,” which means showing their contention is more probably true than not. The Judge ruled that they failed to meet this standard.
8. Section 5.2 of the CC&Rs states that actions taken by the Board are valid, and Article VII of the Starwood Bylaws grants the Board the power to exercise Association authority and to review and approve architectural plans. The Judge found this authority allowed the Board to approve the roof.
9. The roof was approved by the Board of Directors in the summer of 2013. The approval passed with a 5-1 vote, with Petitioner Scott R. Davies being the sole board member who voted against it.
10. Before approving the roof, the Board reviewed a brochure containing the color of the copper-colored roof. However, the Board did not observe a physical sample of the actual roofing material.
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Essay Questions for Further Study
The following questions are designed for deeper, analytical consideration of the case. Answers are not provided.
1. Analyze the conflict between CC&Rs Section 3.1.4 (requiring ACC approval) and other governing documents (like CC&Rs Section 5.2 and Bylaws Article VII) that grant broad authority to the Board. How did the Administrative Law Judge resolve this apparent contradiction in the final decision?
2. Discuss the concept of “burden of proof” as it applied in this case. Explain what “preponderance of the evidence” means and detail why the Petitioners failed to meet this standard with respect to their claims about the roof’s reflective nature and its harmony with the natural surroundings.
3. Examine the interpretation of the Architectural Guidelines regarding “reflective surfaces.” How did the Respondent and the Administrative Law Judge construe this rule, and what evidence and reasoning supported their interpretation over the Petitioners’ broader application?
4. Evaluate the evidence presented by both the Petitioners and the Respondent. Discuss the strengths and weaknesses of each party’s evidence (e.g., the blurred photograph vs. the brochure and photos of other roofs) and explain how this likely influenced the outcome of the case.
5. Based on the issues raised in this case, what specific changes or clarifications could be made to the community’s CC&Rs and Architectural Guidelines to prevent similar disputes in the future?
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Glossary of Key Terms
Definition in Context
ACC (Architectural Committee)
A committee, as referenced in the CC&Rs and Architectural Guidelines, responsible for approving exterior alterations and ensuring all building materials and colors conform to community standards.
Administrative Law Judge (ALJ)
The presiding official (Velva Moses-Thompson) at the Office of Administrative Hearings who conducts hearings, evaluates evidence, and issues a binding decision on the matter.
Architectural Guidelines
A set of community documents establishing goals and specific rules for exterior appearance, colors, materials, and site development to retain the character of Starwood Estates.
Board of Directors (Board)
The governing body of the Starwood Estates Homeowners Association, which is empowered by the CC&Rs and Bylaws to conduct the affairs of the Association and approve architectural plans.
Bylaws
The rules and regulations that govern the internal operations of the Starwood Estates Homeowners Association, including the powers and duties of the Board of Directors.
Covenants, Conditions, and Restrictions. Legally binding rules recorded with the property deeds in the Starwood Estates community that govern what homeowners may or may not do with their property.
Conclusions of Law
The section of the ALJ’s decision that applies legal principles, statutes, and case law to the established facts of the case to reach a final judgment.
Findings of Fact
The section of the ALJ’s decision that formally lists the factual determinations made by the judge based on the evidence presented at the hearing.
Petitioner
The party that initiates a legal action by filing a petition. In this case, Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies, who brought the complaint against the HOA.
Preponderance of the evidence
The standard of proof required in this administrative hearing. It is defined as evidence that is more convincing and has a greater weight than the evidence offered in opposition, persuading the fact-finder that a contention is more likely true than not.
Respondent
The party against whom a petition is filed. In this case, the Starwood Estates Homeowners Association, which had to defend its decision to approve the roof.
Restrictive Covenant
A provision in a deed or community document (like a CC&R) that limits the use of the property. In Arizona, if unambiguous, these are enforced to give effect to the intent of the parties.
Blog Post – 18F-H1818039-REL
This Copper Roof Caused a Legal Battle: 3 Surprising Lessons Every Homeowner Should Learn
Introduction: The Neighborhood Dispute That Went to Court
The relationship between homeowners and their Homeowners Association (HOA) can be a delicate balance. Architectural rules, designed to maintain a community’s aesthetic, often become a source of friction. But what happens when a disagreement over design choices escalates?
In the case of Davies-Brown v. Starwood Estates Homeowners Association, a dispute over Jeff and Karen Martin’s new copper-colored metal roof didn’t just cause whispers over the fence—it went all the way to a formal administrative hearing. When the HOA board approved the roof in a 5-1 vote, the lone dissenting board member, Scott R. Davies, joined two other homeowners to formally challenge the decision.
This seemingly simple disagreement over a roofing material reveals several powerful, and often counter-intuitive, lessons for anyone living in a planned community. From the structural placement of a single sentence to the evidentiary power of a blurry photograph, this case offers a masterclass in HOA law. Here are three surprising lessons every homeowner should learn.
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1. The Devil in the Document: How a Single Sentence Can Decide Everything
The first major lesson from this case is that the hyper-specific wording and structure of your community guidelines are paramount. The location and context of a rule can be just as important as the rule itself.
The petitioners’ core argument was that the copper-colored roof violated the Architectural Guidelines because it was a “reflective surface,” which they believed was forbidden. On the surface, this seems like a straightforward complaint.
However, the HOA mounted a successful counter-argument based on document structure. The Administrative Law Judge agreed with the HOA’s interpretation. The rules for roofs were addressed in a distinct section titled “Roofs, Materials, and Pitches.” The ban on “reflective surfaces,” meanwhile, was located in an entirely separate section, “Exterior Appearance and Colors,” which also contained rules for windows and doors. This seemingly minor structural detail was the deciding factor on this point.
The exact rule the petitioners cited, found in the “Exterior Appearance and Colors” section, illustrates the point perfectly:
Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.
Because this prohibition was not located in the roofing section, the judge concluded it applied only to windows, doors, and general exterior surfaces—not roofs. This case highlights that homeowners must read their community documents with extreme care. A prohibition you think is universal might, in fact, be limited to a very specific context by its placement in the text.
2. The Power of Precedent: What Your Neighbors Did Years Ago Matters Today
The second key takeaway is that an HOA board’s decisions can be heavily influenced by the character of the surrounding area, not just by what has been approved inside the development’s gates.
During the hearing, the HOA presented evidence of other reflective metal roofs, including green and red ones, that existed in the broader Pinetop Country Club area. Starwood Estates is part of this larger community, and the judge’s official findings noted this evidence, which significantly supported the HOA’s position to approve the Martins’ copper-colored roof.
This reveals a nuanced lesson: an HOA doesn’t exist in a vacuum. Once a certain style or material becomes common in the surrounding region, it can establish a de facto community standard. This makes it significantly more difficult for other homeowners to argue against a similar request, as the board can point to the broader neighborhood aesthetic to justify its decision. Before you challenge a project, it’s crucial to look not only at what has been approved within your HOA, but also at the character of the community at large.
3. The Burden of Proof: Your Complaint Is Only as Good as Your Evidence
The third critical lesson is that in any formal dispute, the quality of your evidence is non-negotiable. A subjective feeling or personal opinion holds little weight without objective proof.
The petitioners attempted to prove the roof was overly reflective by submitting a photograph as evidence. However, the judge’s official findings delivered a devastating blow, noting with precise and revealing language: “Although the image showed a reflective the image, the photograph was blurred.”
This detail underscores a vital point: in a legal or formal setting, a complaint must be backed by clear, objective proof. Weak or poor-quality evidence, like a blurred photo, can completely undermine an otherwise valid concern. Even though the image hinted at the issue, its poor quality rendered it useless. If you are going to make a claim, the burden is on you to prove it with convincing, high-quality evidence. Without it, your case is likely to be dismissed.
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Conclusion: Before You Build or Battle, Do Your Homework
The Starwood Estates case serves as a powerful reminder that navigating HOA rules requires diligence. From this single dispute over a copper roof, we learn to read the fine print—and the structure—of governing documents, understand the power of aesthetic standards in the broader community, and ensure any complaint is backed by strong, clear evidence.
The next time you plan a home project or question a neighbor’s, ask yourself: have you really done your homework on the rules, the history, and the facts?
Case Participants
Petitioner Side
Patricia Davies-Brown(petitioner) Appeared on behalf of petitioners
Bart A. Brown, Jr.(petitioner)
Scott R. Davies(petitioner, board member) Starwood Estates HOA Board Voted against the roof approval
Respondent Side
Kristopher L. Smith(HOA attorney) O'Connor & Campbell, P.C. Appeared on behalf of Respondent
Daniel Campbell(HOA attorney) O'Connor & Campbell, P.C.
Pat Knight(board member) Starwood Estates HOA Board
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
L Dettorre(ADRE Staff) Arizona Department of Real Estate
A Hansen(ADRE Staff) Arizona Department of Real Estate
D Jones(ADRE Staff) Arizona Department of Real Estate
D Gardner(ADRE Staff) Arizona Department of Real Estate
N Cano(ADRE Staff) Arizona Department of Real Estate
C Serrano(OAH Staff) Office of Administrative Hearings Transmitted the order
Other Participants
Jeff Martin(Starwood Estates resident) Starwood Estates Property owner whose roof was subject of the dispute
Karen Martin(Starwood Estates resident) Starwood Estates Property owner whose roof was subject of the dispute
Patricia Davies-Brown, Individually and as Trustee of the Trust; BART A. BROWN, JR.; SCOTT R. DAVIES
Counsel
—
Respondent
Starwood Estates Homeowners Association
Counsel
Daniel Campbell & Kristopher L. Smith
Alleged Violations
CC&Rs; Bylaws; Architectural Guidelines
Outcome Summary
The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.
Why this result: Petitioners failed to establish by a preponderance of the evidence that Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.
Key Issues & Findings
Violation of Exterior Appearance and Colors provisions regarding copper-colored metal roof approval
Petitioners alleged that the HOA improperly approved a copper-colored metal roof because it constituted a reflective surface and did not blend with the natural surroundings, violating the community documents. The ALJ denied the petition, finding Petitioners failed to establish by a preponderance of the evidence that the HOA violated its documents, noting the reflective surfaces ban applied to windows and doors, not roofs, and the roof's appearance was acceptable.
Orders: Petitioners' petition is denied.
Filing fee: $0.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
Briefing Document: Davies-Brown v. Starwood Estates HOA
Executive Summary
This document summarizes the administrative hearing and decision in case No. 18F-H1818039-REL, concerning a dispute between homeowners Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies (the “Petitioners”) and the Starwood Estates Homeowners Association (the “Respondent”). The core of the dispute was the HOA Board of Directors’ 2013 approval of a copper-colored metal roof for homeowners Jeff and Karen Martin.
The Petitioners alleged this approval violated the community’s CC&Rs, Bylaws, and Architectural Guidelines. Their primary arguments were that the roof was an impermissible “reflective surface,” that it did not “blend with the natural surrounding and landscape,” and that the Board lacked the authority to approve it without prior review by the Architectural Committee (ACC) and without viewing a physical sample.
The Respondent defended the Board’s decision, arguing that the Board possessed the authority to grant such approvals. They contended the prohibition on reflective surfaces in the community guidelines applies specifically to windows and doors, not roofing. Furthermore, they asserted that the roof was aesthetically compliant and that other reflective metal roofs exist within the community.
The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Respondent. The decision, issued on September 14, 2018, denied the petition, concluding that the Petitioners failed to meet their burden of proof. The ALJ found that the Board had the authority to approve the roof, the ban on reflective surfaces did not apply to roofing, and the Petitioners did not establish that the roof failed to blend with its natural surroundings.
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Case Overview
• Case Name: Patricia Davies-Brown, et al. vs. Starwood Estates Homeowners Association
• Case Number: 18F-H1818039-REL
• Forum: Arizona Office of Administrative Hearings
• Presiding Judge: Velva Moses-Thompson, Administrative Law Judge
• Hearing Dates: July 10, 2018, and August 13, 2018
• Final Decision Date: September 14, 2018
Key Parties and Representatives
Name(s)
Representation / Contact
Petitioners
Patricia Davies-Brown, Bart A. Brown, Jr., Scott R. Davies
Appeared on behalf of themselves 9777 E Dreyfus Ave., Scottsdale, AZ 85260 Pat.davies-brown@cox.net
Respondent
Starwood Estates Homeowners Association
Kristopher L. Smith, Esq. O’Connor & Campbell, P.C. 7955 S Priest Dr., Tempe, AZ 85284 kris.smith@occlaw.com
Homeowners
Jeff and Karen Martin
Owners of the property with the disputed roof at 8500 Skywood Drive, Pinetop, Arizona (Lot 40 of Starwood Estates).
Core Dispute: The Martin Residence Roof
The central conflict originated in the summer of 2013 when the Starwood Estates Board of Directors approved a request from Jeff and Karen Martin to install a copper-colored metal roof on their home. The approval was passed by a 5-1 vote. Petitioner Scott R. Davies was the sole board member who voted against the approval at that time.
The Board reviewed a brochure containing the roof’s color before granting approval but did not observe a physical sample. However, one Board member, Pat Knight, was reportedly familiar with the appearance of such roofs from a previous home she owned nearby. The petition challenging this 2013 decision was filed on or about March 26, 2018.
Petitioners’ Allegations and Arguments
The Petitioners filed their petition with the Arizona Department of Real Estate, alleging that the HOA violated community governing documents. Their case was built on three central questions:
1. Does the exterior appearance of the Martins’ aluminum copper-colored metal roof blend with the “natural surrounding and landscape” of Starwood Estates?
2. Does such roof constitute a “reflective surface”?
3. If the answer to (1) above is no and/or the answer to (2) above is yes, did the ACC and the Board of Starwood Estates erroneously violate the provisions of the CC&R’s and GUIDELINES in permitting the Martins to install such aluminum copper-colored metal roof…?
During the hearing, the Petitioners expanded on these points, arguing:
• Reflective Surface: The copper-colored roof was a prohibited reflective surface under the Architectural Guidelines.
• Aesthetic Incompatibility: The roof did not blend with the natural surroundings as required.
• Procedural Violations:
◦ The Board violated the CC&Rs by approving the roof without first viewing a physical sample of the material.
◦ The approval was invalid because it should have first been granted by the two-person Architectural Committee (ACC) appointed by the Board.
Respondent’s Defense and Arguments
The Starwood Estates HOA maintained that its approval of the Martin roof was proper and compliant with all governing documents. Their key arguments were:
• Board Authority: The HOA asserted that either the Board of Directors or the Architectural Committee had the authority to approve the roof.
• Interpretation of “Reflective Surfaces”: The Respondent argued that the prohibition on “reflective surfaces” within the Architectural Guidelines applies specifically to windows and doors, not to roofing, which is addressed in a separate section of the guidelines.
• Aesthetic Compliance: They contended the roof, while having a “shine,” was not a barred reflective surface and did blend in with the natural surroundings.
• Precedent: The HOA noted that several other metal roofs that are reflective had been previously approved in Starwood Estates. They submitted images of reflective green and red roofs in the Pinetop Country Club area as evidence.
Referenced Governing Documents
The decision cited specific sections from the HOA’s governing documents to adjudicate the dispute.
• Section 3.1.4: Requires prior written approval from the Architectural Committee for any work that alters the exterior appearance of a Lot.
• Section 5.2: States that approvals or actions to be taken by the Association “shall be valid if given or taken by the Board.”
• Article VII, Section A(2): Grants the Board authority to exercise all powers and duties vested in the Association unless reserved to the membership.
• Article VII, Section B: Empowers the Board to “Review and approve any architectural plan for the building of any improvements on any Lots.”
• Exterior Appearance and Colors: Mandates that exterior appearance “shall blend with the natural surroundings and landscape.” It also states, “Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.” A note requires the owner to submit samples of materials for ACC approval.
• Roofs, Materials, and Pitches: Stipulates that “Metal roofs are permitted only with ACC approval” and that all pitched roof materials “shall promote a continuity of texture and color.”
Evidence Presented
• Petitioner’s Exhibit 13: A photograph of the Martins’ copper-colored roof. The ALJ’s decision noted that while the image showed a reflection, the photograph itself was “blurred.”
• Respondent’s Exhibit 26: The brochure containing the color of the copper-colored roof that the Board reviewed before its 2013 approval.
• Respondent’s Exhibit 7: Images of other reflective green and red metal roofs located in the Pinetop Country Club area, which were previously approved.
• Testimony: Board member Pat Knight’s familiarity with the appearance of copper-colored roofs was noted.
Administrative Law Judge’s Decision and Rationale
The petition was denied. The ALJ found that the Petitioners failed to establish by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.
Conclusions of Law
1. Burden of Proof: The Petitioners bore the burden of proving their claims by a “preponderance of the evidence,” defined as evidence that is more probably true than not. They failed to meet this standard.
2. Board Authority: The ALJ concluded that the governing documents allowed for the roof to be approved by either the Architectural Committee or the Board of Directors. The Board’s action was therefore valid.
3. Interpretation of Reflective Surfaces: The evidence established that the prohibition on “reflective surfaces” in the Architectural Guidelines applies to windows and doors. Roofs are addressed in a separate section of the guidelines. The existence of other approved shiny metal roofs further supported this interpretation.
4. Aesthetic Compliance: The Petitioners did not provide sufficient evidence to prove that the copper-colored roof failed to blend in with the natural surroundings.
Final Order
IT IS ORDERED that Petitioners’ petition is denied because Petitioners have not established that Respondent violated the Community Bylaws, Community CC&Rs, and the Community Architectural Guidelines when Respondent approved the Martins’ request to install the copper-colored roof.
The order was made binding unless a rehearing was requested within 30 days of service.
Study Guide – 18F-H1818039-REL
Study Guide: Davies-Brown v. Starwood Estates HOA (Case No. 18F-H1818039-REL)
This guide provides a comprehensive review of the administrative hearing case between Patricia Davies-Brown, et al., and the Starwood Estates Homeowners Association. It includes a short-answer quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms as defined within the context of the provided legal documents.
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Short-Answer Quiz
Answer the following questions in two to three sentences, drawing exclusively from the information presented in the case documents.
1. Who were the primary parties involved in Case No. 18F-H1818039-REL?
2. What specific architectural feature was the central point of the dispute?
3. What were the three main questions the Petitioners raised in their petition filed on March 26, 2018?
4. How did the Respondent (Starwood Estates HOA) justify the approval of other reflective metal roofs in the community?
5. According to the Petitioners, which two procedural errors did the Board of Directors commit when approving the Martins’ roof?
6. What was the Administrative Law Judge’s conclusion regarding the prohibition of “reflective surfaces” in the Architectural Guidelines?
7. What is the legal standard of proof the Petitioners were required to meet, and did they succeed?
8. Which governing documents grant the Board of Directors the authority to approve architectural plans?
9. When was the disputed roof originally approved by the Board, and what was the vote count?
10. What evidence did the Board review before its initial approval, and what evidence was not reviewed at that time?
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Answer Key
1. The Petitioners were Patricia Davies-Brown (Individually and as Trustee of the Trust), Bart A. Brown, Jr., and Scott R. Davies. The Respondent was the Starwood Estates Homeowners Association.
2. The central dispute was an aluminum, “copper-colored metal roof” installed by homeowners Jeff and Karen Martin on their property at Lot 40 of Starwood Estates. The Petitioners challenged the HOA Board’s approval of this roof.
3. The Petitioners’ petition questioned whether the roof blended with the “natural surrounding and landscape,” whether it constituted a “reflective surface,” and if so, whether the Board and ACC violated the CC&Rs and Guidelines by permitting it.
4. The Respondent submitted evidence of other reflective green and red metal roofs within the Pinetop Country Club area that had been previously approved by the Board. This was used to argue that roofs with a shine were not explicitly barred.
5. The Petitioners contended the Board violated the CC&Rs by approving the roof without first viewing a physical sample. They also argued that the roof required approval from the two-person Architectural Committee (ACC) and could not be approved by the Board alone.
6. The Judge concluded that the bar on reflective surfaces, as written in the Architectural Guidelines, applies specifically to windows and doors. Roofs are addressed in a separate section of the guidelines that does not contain the same prohibition.
7. The Petitioners bore the burden of proof to establish their case by a “preponderance of the evidence,” which means showing their contention is more probably true than not. The Judge ruled that they failed to meet this standard.
8. Section 5.2 of the CC&Rs states that actions taken by the Board are valid, and Article VII of the Starwood Bylaws grants the Board the power to exercise Association authority and to review and approve architectural plans. The Judge found this authority allowed the Board to approve the roof.
9. The roof was approved by the Board of Directors in the summer of 2013. The approval passed with a 5-1 vote, with Petitioner Scott R. Davies being the sole board member who voted against it.
10. Before approving the roof, the Board reviewed a brochure containing the color of the copper-colored roof. However, the Board did not observe a physical sample of the actual roofing material.
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Essay Questions for Further Study
The following questions are designed for deeper, analytical consideration of the case. Answers are not provided.
1. Analyze the conflict between CC&Rs Section 3.1.4 (requiring ACC approval) and other governing documents (like CC&Rs Section 5.2 and Bylaws Article VII) that grant broad authority to the Board. How did the Administrative Law Judge resolve this apparent contradiction in the final decision?
2. Discuss the concept of “burden of proof” as it applied in this case. Explain what “preponderance of the evidence” means and detail why the Petitioners failed to meet this standard with respect to their claims about the roof’s reflective nature and its harmony with the natural surroundings.
3. Examine the interpretation of the Architectural Guidelines regarding “reflective surfaces.” How did the Respondent and the Administrative Law Judge construe this rule, and what evidence and reasoning supported their interpretation over the Petitioners’ broader application?
4. Evaluate the evidence presented by both the Petitioners and the Respondent. Discuss the strengths and weaknesses of each party’s evidence (e.g., the blurred photograph vs. the brochure and photos of other roofs) and explain how this likely influenced the outcome of the case.
5. Based on the issues raised in this case, what specific changes or clarifications could be made to the community’s CC&Rs and Architectural Guidelines to prevent similar disputes in the future?
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Glossary of Key Terms
Definition in Context
ACC (Architectural Committee)
A committee, as referenced in the CC&Rs and Architectural Guidelines, responsible for approving exterior alterations and ensuring all building materials and colors conform to community standards.
Administrative Law Judge (ALJ)
The presiding official (Velva Moses-Thompson) at the Office of Administrative Hearings who conducts hearings, evaluates evidence, and issues a binding decision on the matter.
Architectural Guidelines
A set of community documents establishing goals and specific rules for exterior appearance, colors, materials, and site development to retain the character of Starwood Estates.
Board of Directors (Board)
The governing body of the Starwood Estates Homeowners Association, which is empowered by the CC&Rs and Bylaws to conduct the affairs of the Association and approve architectural plans.
Bylaws
The rules and regulations that govern the internal operations of the Starwood Estates Homeowners Association, including the powers and duties of the Board of Directors.
Covenants, Conditions, and Restrictions. Legally binding rules recorded with the property deeds in the Starwood Estates community that govern what homeowners may or may not do with their property.
Conclusions of Law
The section of the ALJ’s decision that applies legal principles, statutes, and case law to the established facts of the case to reach a final judgment.
Findings of Fact
The section of the ALJ’s decision that formally lists the factual determinations made by the judge based on the evidence presented at the hearing.
Petitioner
The party that initiates a legal action by filing a petition. In this case, Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies, who brought the complaint against the HOA.
Preponderance of the evidence
The standard of proof required in this administrative hearing. It is defined as evidence that is more convincing and has a greater weight than the evidence offered in opposition, persuading the fact-finder that a contention is more likely true than not.
Respondent
The party against whom a petition is filed. In this case, the Starwood Estates Homeowners Association, which had to defend its decision to approve the roof.
Restrictive Covenant
A provision in a deed or community document (like a CC&R) that limits the use of the property. In Arizona, if unambiguous, these are enforced to give effect to the intent of the parties.
Blog Post – 18F-H1818039-REL
This Copper Roof Caused a Legal Battle: 3 Surprising Lessons Every Homeowner Should Learn
Introduction: The Neighborhood Dispute That Went to Court
The relationship between homeowners and their Homeowners Association (HOA) can be a delicate balance. Architectural rules, designed to maintain a community’s aesthetic, often become a source of friction. But what happens when a disagreement over design choices escalates?
In the case of Davies-Brown v. Starwood Estates Homeowners Association, a dispute over Jeff and Karen Martin’s new copper-colored metal roof didn’t just cause whispers over the fence—it went all the way to a formal administrative hearing. When the HOA board approved the roof in a 5-1 vote, the lone dissenting board member, Scott R. Davies, joined two other homeowners to formally challenge the decision.
This seemingly simple disagreement over a roofing material reveals several powerful, and often counter-intuitive, lessons for anyone living in a planned community. From the structural placement of a single sentence to the evidentiary power of a blurry photograph, this case offers a masterclass in HOA law. Here are three surprising lessons every homeowner should learn.
——————————————————————————–
1. The Devil in the Document: How a Single Sentence Can Decide Everything
The first major lesson from this case is that the hyper-specific wording and structure of your community guidelines are paramount. The location and context of a rule can be just as important as the rule itself.
The petitioners’ core argument was that the copper-colored roof violated the Architectural Guidelines because it was a “reflective surface,” which they believed was forbidden. On the surface, this seems like a straightforward complaint.
However, the HOA mounted a successful counter-argument based on document structure. The Administrative Law Judge agreed with the HOA’s interpretation. The rules for roofs were addressed in a distinct section titled “Roofs, Materials, and Pitches.” The ban on “reflective surfaces,” meanwhile, was located in an entirely separate section, “Exterior Appearance and Colors,” which also contained rules for windows and doors. This seemingly minor structural detail was the deciding factor on this point.
The exact rule the petitioners cited, found in the “Exterior Appearance and Colors” section, illustrates the point perfectly:
Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.
Because this prohibition was not located in the roofing section, the judge concluded it applied only to windows, doors, and general exterior surfaces—not roofs. This case highlights that homeowners must read their community documents with extreme care. A prohibition you think is universal might, in fact, be limited to a very specific context by its placement in the text.
2. The Power of Precedent: What Your Neighbors Did Years Ago Matters Today
The second key takeaway is that an HOA board’s decisions can be heavily influenced by the character of the surrounding area, not just by what has been approved inside the development’s gates.
During the hearing, the HOA presented evidence of other reflective metal roofs, including green and red ones, that existed in the broader Pinetop Country Club area. Starwood Estates is part of this larger community, and the judge’s official findings noted this evidence, which significantly supported the HOA’s position to approve the Martins’ copper-colored roof.
This reveals a nuanced lesson: an HOA doesn’t exist in a vacuum. Once a certain style or material becomes common in the surrounding region, it can establish a de facto community standard. This makes it significantly more difficult for other homeowners to argue against a similar request, as the board can point to the broader neighborhood aesthetic to justify its decision. Before you challenge a project, it’s crucial to look not only at what has been approved within your HOA, but also at the character of the community at large.
3. The Burden of Proof: Your Complaint Is Only as Good as Your Evidence
The third critical lesson is that in any formal dispute, the quality of your evidence is non-negotiable. A subjective feeling or personal opinion holds little weight without objective proof.
The petitioners attempted to prove the roof was overly reflective by submitting a photograph as evidence. However, the judge’s official findings delivered a devastating blow, noting with precise and revealing language: “Although the image showed a reflective the image, the photograph was blurred.”
This detail underscores a vital point: in a legal or formal setting, a complaint must be backed by clear, objective proof. Weak or poor-quality evidence, like a blurred photo, can completely undermine an otherwise valid concern. Even though the image hinted at the issue, its poor quality rendered it useless. If you are going to make a claim, the burden is on you to prove it with convincing, high-quality evidence. Without it, your case is likely to be dismissed.
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Conclusion: Before You Build or Battle, Do Your Homework
The Starwood Estates case serves as a powerful reminder that navigating HOA rules requires diligence. From this single dispute over a copper roof, we learn to read the fine print—and the structure—of governing documents, understand the power of aesthetic standards in the broader community, and ensure any complaint is backed by strong, clear evidence.
The next time you plan a home project or question a neighbor’s, ask yourself: have you really done your homework on the rules, the history, and the facts?
Case Participants
Petitioner Side
Patricia Davies-Brown(petitioner) Appeared on behalf of petitioners
Bart A. Brown, Jr.(petitioner)
Scott R. Davies(petitioner, board member) Starwood Estates HOA Board Voted against the roof approval
Respondent Side
Kristopher L. Smith(HOA attorney) O'Connor & Campbell, P.C. Appeared on behalf of Respondent
Daniel Campbell(HOA attorney) O'Connor & Campbell, P.C.
Pat Knight(board member) Starwood Estates HOA Board
Neutral Parties
Velva Moses-Thompson(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
L Dettorre(ADRE Staff) Arizona Department of Real Estate
A Hansen(ADRE Staff) Arizona Department of Real Estate
D Jones(ADRE Staff) Arizona Department of Real Estate
D Gardner(ADRE Staff) Arizona Department of Real Estate
N Cano(ADRE Staff) Arizona Department of Real Estate
C Serrano(OAH Staff) Office of Administrative Hearings Transmitted the order
Other Participants
Jeff Martin(Starwood Estates resident) Starwood Estates Property owner whose roof was subject of the dispute
Karen Martin(Starwood Estates resident) Starwood Estates Property owner whose roof was subject of the dispute
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)
Video Overview
Audio Overview
Decision Documents
18F-H1818052-REL Decision – 660026.pdf
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18F-H1818052-REL Decision – 720468.pdf
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This is a concise summary of the administrative law proceedings concerning Lawrence M. Stewart's petition against the Canyon Gate Condominium Association, Inc., drawing from the original hearing (September 6, 2018) and the subsequent rehearing (January 2, 2019).
Summary of Administrative Law Case: Stewart v. Canyon Gate Condominium Association, Inc.
Key Facts
The Petitioner, Lawrence M. Stewart, an owner and former Board member, made changes to the common or limited common area around his unit without prior permission, violating section 5.1 of the CC&Rs. After being informed of the violation, Mr. Stewart requested a variance from the Association Board while he was still a member. At a Board meeting on February 18, 2018, Mr. Stewart resigned, and the two remaining Board members (Sandra Fernandez and David Larson) voted to deny his variance request, requiring him to restore the areas to their original condition.
Main Issues and Petitioner's Arguments
Mr. Stewart filed a petition with the Arizona Department of Real Estate alleging the Association violated Bylaws section 5.4. His central argument was that the Board did not act in good faith when denying the variance request. He asserted that Board member David Larson was biased against him and that the denial was unfair because other units were also non-conforming with the CC&Rs. Mr. Stewart cited Bylaws Section 5.4 because he testified it was the only section referring to a “good faith” requirement in the governing documents.
Key Legal Points and Analysis
Burden of Proof: Mr. Stewart bore the burden of proof by a preponderance of the evidence. The Bylaws are considered a contract, and the Respondent (Association) is required to act reasonably in exercising its authority.
Applicability of Section 5.4: The Administrative Law Judge (ALJ) concluded that Bylaws Article V, Section 5.4 (Liability/Indemnification) does not impose any duty on the Board members; rather, it merely shields them from liability if they act in good faith. Mr. Stewart eventually acknowledged that the Association had not technically violated Section 5.4.
Reasonableness of Board Action: The Board's stated reason for denying the variance was fear of "open[ing] a Pandora’s Box" where other unit owners would request variances. The ALJ found this concern to be a not unreasonable position for a condominium association board.
Lack of Evidence for Bias/Unfairness: The ALJ found that Mr. Stewart did not demonstrate by a preponderance of the evidence that the Board lacked good faith, was biased against him, or treated him unfairly. Regarding the assertion of other non-conforming units, there was no evidence that those owners had requested variances, making that testimony not probative of the issue at hand.
Outcome
The Administrative Law Judge determined that Mr. Stewart failed to meet his burden of proof. Consequently, Petitioner Lawrence M. Stewart’s petition was dismissed in both the initial decision (September 14, 2018) and the binding order issued after the rehearing (January 17, 2019). The Respondent, Canyon Gate Condominium Association, Inc., was deemed the prevailing party.
Study Guide – 18F-H1818052-REL
Study Guide: Stewart v. Canyon Gate Condominium Association, Inc.
This study guide provides a review of the administrative legal case Lawrence M. Stewart v. Canyon Gate Condominium Association, Inc. (Case No. 18F-H1818052-REL). It covers the key facts, legal arguments, and outcomes of the initial hearing and subsequent rehearing as detailed in the decisions issued by the Arizona Office of Administrative Hearings.
Short-Answer Quiz
Answer the following ten questions based on the provided case documents. Each answer should be approximately two to three sentences long.
1. What initial action taken by Lawrence M. Stewart prompted the Canyon Gate Condominium Association to contact him with a notice of violation?
2. What specific section of the Association Bylaws did Mr. Stewart allege was violated in his petition to the Department of Real Estate?
3. What was Mr. Stewart’s position within the Association at the time he requested a variance for the changes he had made?
4. According to Mr. Stewart, what was the Board’s primary reason for denying his variance request?
5. Why did Mr. Stewart ultimately resign from the Association’s Board during the February 18, 2018 meeting?
6. In the initial hearing, what three pieces of evidence did Mr. Stewart present to support his allegation that Board member David Larson was biased against him?
7. What is the legal standard of proof required in this matter, and which party bears the burden of meeting that standard?
8. How did the Administrative Law Judge interpret the function of Bylaws Section 5.4, characterizing it as either a “shield” or a “sword”?
9. During the rehearing, what new piece of evidence did Mr. Stewart introduce to support his claim of bias from Mr. Larson?
10. What was the final ruling in both the initial hearing (September 14, 2018) and the rehearing (January 17, 2019)?
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Quiz Answer Key
1. Mr. Stewart made changes to the common area and/or limited common area around his condominium unit without first getting permission from the Association. This action was a violation of section 5.1 of the CC&Rs, leading the Association’s counsel to send him a letter on November 15, 2017.
2. Mr. Stewart’s petition alleged that the Association violated Bylaws Section 5.4. He later clarified that he cited this specific section because it was the only one in the governing documents that included a “good faith” requirement, which he believed the Board had failed to meet.
3. At the time he requested a variance to approve the changes he had made, Mr. Stewart was an active member of the Association’s Board of Directors. The other two members were Sandra Fernandez and David Larson.
4. The Board denied his request because they feared it would “open a Pandora’s Box,” leading other unit owners to request variances for changes to the common area. The judge found this was not an unreasonable position for a condominium association board to take.
5. Mr. Stewart resigned from the Board because he got the sense “right away” that the other two board members, Ms. Fernandez and Mr. Larson, had already made up their minds to deny his request and would not approve it.
6. To support his bias claim, Mr. Stewart relied on: (1) a biography of Mr. Larson prepared by the property manager, (2) statements Mr. Larson made in notes from a November 28, 2017 Board meeting, and (3) his belief that the other members had already decided the matter without his input.
7. The standard of proof is a “preponderance of the evidence.” The burden of proof to meet this standard rests entirely on the Petitioner, Mr. Stewart.
8. The judge concluded that Section 5.4 acts as a “shield” to protect Board members from liability when they act in good faith. It does not impose a duty on them and cannot be used as a “sword” by an owner to force a particular action from the Board.
9. At the rehearing, Mr. Stewart entered into evidence an October 3, 2018 letter written by Mr. Larson to the Association’s members. In the letter, Mr. Larson urged the members not to vote for Mr. Stewart in an upcoming election.
10. In both the initial hearing and the rehearing, 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
1. Analyze the legal reasoning behind the Administrative Law Judge’s conclusion that Bylaws Section 5.4 was not applicable to Mr. Stewart’s claim. How did Mr. Stewart’s interpretation of the section as a “sword” versus a “shield” contribute to this outcome?
2. Discuss the concept of “preponderance of the evidence” as defined in the case documents. Evaluate the evidence Mr. Stewart presented to prove bias and unfair treatment, and explain why the judge found it insufficient to meet this standard.
3. Examine the Board’s justification for denying the variance request (the “Pandora’s Box” argument). Based on the court’s conclusions, discuss why this was considered a “reasonable position” for a condominium association board, even without a detailed inspection of Mr. Stewart’s specific changes.
4. Trace the evolution of Mr. Stewart’s arguments and evidence from the initial hearing on September 6, 2018, to the rehearing on January 2, 2019. What new evidence was introduced, and did it fundamentally change the core issues or the final outcome of the case?
5. Explore the principle established in the “Conclusions of Law” that Association Bylaws function as a contract between the parties. How does this principle require both homeowners and the Association Board to act, and how did it influence the judge’s final decision in this matter?
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Glossary of Key Terms
Definition in the Context of the Case
Administrative Law Judge (ALJ)
The official, Thomas Shedden, who presided over the hearings, reviewed the evidence, and issued the final decisions in this matter.
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. Mr. Stewart alleged a violation of Bylaws Section 5.4.
Covenants, Conditions, and Restrictions. Mr. Stewart was found to be in violation of section 5.1 of the CC&Rs for making unapproved changes to a common area.
Common Area
An area around a condominium unit that is not privately owned. Mr. Stewart made unauthorized changes to the common and/or limited common area around his unit.
Good Faith
A standard of conduct mentioned in Bylaws Section 5.4, which shields Board members from liability if they act accordingly. Mr. Stewart’s core argument was that the Board did not act in good faith when denying his variance request.
Indemnification
The subject of Article V of the Bylaws. Section 5.4, titled “Liability,” falls under this article and serves to protect, or indemnify, the Board from liability.
Petitioner
The party who initiates a legal action by filing a petition. In this case, the Petitioner was Lawrence M. Stewart.
Preponderance of the Evidence
The standard of proof required for the Petitioner to win the case. It is defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Recuse
To formally withdraw from a decision-making process due to a conflict of interest. The Association’s attorney incorrectly stated in a letter that Mr. Stewart had recused himself from voting on his own variance request.
Respondent
The party against whom a petition is filed. In this case, the Respondent was Canyon Gate Condominium Association, Inc.
Variance
A formal request for an exception to the established rules (the CC&Rs). Mr. Stewart requested a variance to gain approval for the changes he had already made to the common area.
Blog Post – 18F-H1818052-REL
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18F-H1818052-REL-RHG
4 sources
These documents consist of Administrative Law Judge Decisions from the Office of Administrative Hearings in Arizona, detailing a dispute between Petitioner Lawrence M. Stewart and the Canyon Gate Condominium Association, Inc. The core issue revolves around Mr. Stewart making unauthorized changes to the common area of his unit and his subsequent failed attempt to obtain a variance from the Association’s Board. The sources include an initial decision (dated September 14, 2018) and two decisions stemming from a rehearing (both dated January 17, 2019, though one is more detailed), all concluding that Mr. Stewart’s petition must be dismissed. The Administrative Law Judge determined that Mr. Stewart failed to prove by a preponderance of the evidence that the Association acted in bad faith or was biased against him when it denied his request, despite his reliance on a Bylaws section regarding indemnity which the court found acted as a “shield” for the Board rather than a source of duty.
Based on 4 sources
Case Participants
Petitioner Side
Lawrence M. Stewart(petitioner) Was also a board member during the variance request period, but resigned prior to the vote to deny his request
Respondent Side
Mark K. Sahl(Respondent Attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Nicolas C. S. Nogami(Respondent Attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP Also appears as 'Nichols C. S. Nogami'
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 bias against him
Neutral Parties
Thomas Shedden(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
F. Del Sol(Administrative Staff) Transmitted copies of the decision
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)
The Petition was dismissed in its entirety because the Petitioners failed to establish by a preponderance of the evidence that the Bell West Ranch Homeowners Association violated the cited CC&Rs provisions (Sections 8.02, 8.06, 6.02) or A.R.S. § 33-1803(B).
Why this result: Petitioners failed to meet the burden of proof required to establish the alleged violations.
Key Issues & Findings
Alleged violations regarding failure to enforce city fire and municipal codes, failure to procure adequate insurance, and violations of specific CC&R provisions (8.02, 8.06, 6.02)
Petitioners alleged the HOA violated governing documents and statute by approving a neighbor's driveway extension which allegedly violated municipal codes and an easement, and by failing to maintain a properly constituted Architectural Committee. Petitioners failed to establish these violations by a preponderance of the evidence.
Orders: The Petition was dismissed in its entirety.
Filing fee: $2,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1803(B)
CC&Rs Section 8.02
CC&Rs Section 8.06
CC&Rs Section 6.02
Analytics Highlights
Topics: HOA enforcement, CC&R violation, Architectural Committee, driveway extension, easement, municipal codes
Additional Citations:
A.R.S. § 33-1803(B)
A.R.S. § 41-2198.01
CC&Rs Section 8.02
CC&Rs Section 8.06
CC&Rs Section 6.02
Video Overview
Audio Overview
Decision Documents
18F-H1818047-REL Decision – 659285.pdf
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18F-H1818047-REL Decision – 659287.pdf
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18F-H1818047-REL Decision – 679550.pdf
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18F-H1818047-REL Decision – 952813.pdf
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Briefing Doc – 18F-H1818047-REL
Administrative Hearing Briefing: Berent v. Bell West Ranch Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the administrative hearing decision in case number 18F-H1818047-REL, involving petitioners Michael and Nancy Berent and the respondent, Bell West Ranch Homeowners Association (HOA). The core of the dispute was the HOA’s 2015 approval of a driveway extension for the Berents’ neighbors, which the Berents alleged violated multiple HOA Covenants, Conditions, and Restrictions (CC&Rs) as well as Arizona state law.
On September 11, 2018, Administrative Law Judge (ALJ) Tammy L. Eigenheer issued a decision dismissing the Berents’ petition in its entirety. The judge concluded that the petitioners failed to meet their burden of proof—to establish their claims by a preponderance of the evidence—on all four of their central allegations. Specifically, the ALJ found no violation regarding the composition of the HOA’s Architectural Review Committee (ARC), the interpretation of CC&Rs concerning structures and easements, or the HOA’s discretionary authority to enforce its rules.
Notably, a subsequent “Minute Entry” filed on March 8, 2022, indicates that the Office of Administrative Hearings (OAH) had been receiving further documents from the petitioners years after the case was closed. The OAH clarified that it no longer had jurisdiction and would take no further action on the matter.
1. Case Overview
The dispute was adjudicated by the Arizona Office of Administrative Hearings after the petitioners filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate on April 26, 2018.
Case Detail
Information
Case Number
18F-H1818047-REL
Petitioners
Michael and Nancy Berent
Respondent
Bell West Ranch Homeowners Association
Office of Administrative Hearings (Phoenix, Arizona)
Tammy L. Eigenheer
Hearing Dates
August 15, 2018, and August 22, 2018
Decision Date
September 11, 2018
2. Central Allegations and Rulings
At the hearing, the petitioners’ claims were clarified into four distinct allegations of violation by the HOA. The ALJ ruled against the petitioners on every count, finding they failed to provide sufficient evidence.
2.1. Allegation 1: Violation of CC&R Section 6.02 (ARC Membership)
• Petitioner’s Claim: Ms. Berent argued that the Architectural Review Committee (ARC) was not properly composed of the required three members when it approved the neighbor’s driveway application. Her evidence consisted of Board of Directors meeting minutes from 2015 and 2016 that listed only a single individual (Ken Hawkins or Larry Bolton) as presenting the ARC report. She contended this proved the ARC had only one member at those times.
• Respondent’s Position: Regis Salazar of VISION Community Management testified that the ARC consisted of three members at all relevant times. She explained that the meeting minutes cited by the petitioner merely identified the individual presenting the committee’s report to the board, not the entire committee’s membership.
• ALJ’s Conclusion:No violation found. The petitioners failed to establish a violation. The respondent’s testimony provided a credible explanation for the format of the meeting minutes, which was the petitioners’ only evidence for this claim.
2.2. Allegation 2: Violation of CC&R Section 8.02 (Structures & Municipal Codes)
• Petitioner’s Claim: Ms. Berent testified that the ARC should not have approved the driveway application because it demonstrated a clear violation of City of Surprise municipal codes on its face, specifically asserting the 10-foot extension caused the driveway to exceed 50 percent of the front lot line. The CC&Rs require structures to comply with municipal regulations.
• Respondent’s Position: Ms. Salazar stated that the HOA places the responsibility on each homeowner to ensure their projects comply with all applicable municipal codes. The ARC does not independently verify compliance. The approval notice sent to the neighbor explicitly stated, “You also must follow all local building codes and setback requirements, if applicable.“
• ALJ’s Conclusion:No violation found. The petitioners failed to establish that the driveway qualified as a “structure” under the definition relevant to Section 8.02. Furthermore, the judge noted that even if it were considered a structure, the HOA did not have a duty or responsibility under this CC&R section to pre-emptively enforce municipal codes.
2.3. Allegation 3: Violation of CC&R Section 8.06 (Obstruction of Easements)
• Petitioner’s Claim: Ms. Berent testified that a fire hydrant located near the property line constituted a “public utility easement” and that the neighbor’s driveway extension was a structure placed upon it, interfering with its use in violation of the CC&Rs.
• Respondent’s Position: Ms. Salazar testified she was not aware of any public utility easement associated with the fire hydrant.
• ALJ’s Conclusion:No violation found. The petitioners failed on two points. First, they presented “no evidence to establish that the fire hydrant at issue constituted a public utility easement.” Second, even assuming it was an easement, they failed to prove the driveway obstructed it. This conclusion was decisively supported by Ms. Berent’s own testimony, in which she “acknowledged… that a residential fire occurred two houses away from her and the fire department had to use the fire hydrant… the fire hose was running across Neighbors’ driveway during that time.” This demonstrated the hydrant remained fully accessible and usable.
2.4. Allegation 4: Violation of A.R.S. § 33-1803(B) (Failure to Enforce)
• Petitioner’s Claim: Ms. Berent argued that “common sense” required the HOA to enforce its CC&Rs and penalize the neighbors for the violations, drawing a comparison to the HOA sending her notices for weeds in her yard.
• Respondent’s Position: The HOA argued that it chose not to pursue enforcement action against the neighbors because the City of Surprise, after issuing an initial Notice of Ordinance Violation, had itself “declined to pursue any further enforcement action.”
• ALJ’s Conclusion:No violation found. The judge pointed to the “plain language” of the statute, which states the board of directors may impose penalties, establishing this as a discretionary power, not a mandatory duty. Nothing in the statute required the HOA to take enforcement action. The HOA’s decision not to act, mirroring the city’s own lack of follow-up, was a valid exercise of its authority.
3. Key Chronology of Events
• July 7, 2015: The petitioners’ neighbors submit an “Application for Design Review” to install a 10-foot by 35-foot concrete driveway extension.
• July 15, 2015: The HOA’s Architectural Review Committee (ARC) approves the application.
• July 17, 2015: VISION Community Management sends an approval notice to the neighbors with conditions, including adherence to a 13-inch property line setback and all local building codes.
• August 2015: The neighbors begin construction. The petitioners email the HOA board to complain about the project, questioning city approval and raising concerns about a nearby fire hydrant.
• May 16, 2016: The City of Surprise issues a “Notice of Ordinance Violation” to the neighbors, stating a “driveway extension was added contrary to code requirements.”
• Post-May 2016: The City of Surprise takes no further enforcement action against the neighbors.
• April 26, 2018: The Berents file their HOA Dispute Petition.
• August 15 & 22, 2018: The administrative hearing is held.
• September 11, 2018: The ALJ issues the final decision, ordering that the petition be dismissed in its entirety.
• March 8, 2022: The ALJ issues a “Minute Entry – Document Reject,” noting that the OAH has no jurisdiction and will not consider further documents submitted by the petitioners.
4. Post-Decision Developments
On March 8, 2022, nearly three and a half years after the case was closed, ALJ Tammy L. Eigenheer issued a “Minute Entry – Document Reject.” This entry states:
“It is unclear why the Office of Administrative Hearings was sent these documents as the decision in this matter was issued on September 11, 2018, and the Office of Administrative Hearings has had no jurisdiction in this matter since that time.”
The entry advises the petitioners that no documents sent after the decision would be considered and that “no further response will be provided from the Office of Administrative Hearings” for any future filings.
5. Quoted Provisions and Statutes
The case revolved around the interpretation of the following sections of the Bell West Ranch Homeowners Association CC&Rs and Arizona Revised Statutes.
• CC&R Section 6.02 (Membership):
• CC&R Section 8.02 (Restrictions Apply to All Structures):
• CC&R Section 8.06 (No Obstruction of Easements):
• A.R.S. § 33-1803(B):
Case Participants
Petitioner Side
Michael Berent(petitioner) Appeared on their own behalf
Nancy Berent(petitioner) Appeared on their own behalf; testified at hearing
Respondent Side
Maria Kupillas(HOA attorney) Represented Bell West Ranch Homeowners Association
Regis Salazar(witness) VISION Community Management Testified for Respondent
Ken Hawkins(ARC member) Presented Architectural Review Committee report at Board meeting
Larry Bolton(ARC member) Listed in ARC meeting minutes as committee member/presenter
Kelsey Dressen(HOA attorney) Copied on 2022 Minute Entry
The Petition was dismissed in its entirety because the Petitioners failed to establish by a preponderance of the evidence that the Bell West Ranch Homeowners Association violated the cited CC&Rs provisions (Sections 8.02, 8.06, 6.02) or A.R.S. § 33-1803(B).
Why this result: Petitioners failed to meet the burden of proof required to establish the alleged violations.
Key Issues & Findings
Alleged violations regarding failure to enforce city fire and municipal codes, failure to procure adequate insurance, and violations of specific CC&R provisions (8.02, 8.06, 6.02)
Petitioners alleged the HOA violated governing documents and statute by approving a neighbor's driveway extension which allegedly violated municipal codes and an easement, and by failing to maintain a properly constituted Architectural Committee. Petitioners failed to establish these violations by a preponderance of the evidence.
Orders: The Petition was dismissed in its entirety.
Filing fee: $2,000.00, Fee refunded: No
Disposition: petitioner_loss
Cited:
A.R.S. § 33-1803(B)
CC&Rs Section 8.02
CC&Rs Section 8.06
CC&Rs Section 6.02
Analytics Highlights
Topics: HOA enforcement, CC&R violation, Architectural Committee, driveway extension, easement, municipal codes
Additional Citations:
A.R.S. § 33-1803(B)
A.R.S. § 41-2198.01
CC&Rs Section 8.02
CC&Rs Section 8.06
CC&Rs Section 6.02
Video Overview
Audio Overview
Decision Documents
18F-H1818047-REL Decision – 659285.pdf
Uploaded 2026-01-23T17:24:27 (142.7 KB)
18F-H1818047-REL Decision – 659287.pdf
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18F-H1818047-REL Decision – 679550.pdf
Uploaded 2026-01-23T17:24:35 (133.6 KB)
18F-H1818047-REL Decision – 952813.pdf
Uploaded 2026-01-23T17:24:39 (42.6 KB)
18F-H1818047-REL Decision – 952828.pdf
Uploaded 2026-01-23T17:24:41 (30.5 KB)
Briefing Doc – 18F-H1818047-REL
Administrative Hearing Briefing: Berent v. Bell West Ranch Homeowners Association
Executive Summary
This document provides a comprehensive analysis of the administrative hearing decision in case number 18F-H1818047-REL, involving petitioners Michael and Nancy Berent and the respondent, Bell West Ranch Homeowners Association (HOA). The core of the dispute was the HOA’s 2015 approval of a driveway extension for the Berents’ neighbors, which the Berents alleged violated multiple HOA Covenants, Conditions, and Restrictions (CC&Rs) as well as Arizona state law.
On September 11, 2018, Administrative Law Judge (ALJ) Tammy L. Eigenheer issued a decision dismissing the Berents’ petition in its entirety. The judge concluded that the petitioners failed to meet their burden of proof—to establish their claims by a preponderance of the evidence—on all four of their central allegations. Specifically, the ALJ found no violation regarding the composition of the HOA’s Architectural Review Committee (ARC), the interpretation of CC&Rs concerning structures and easements, or the HOA’s discretionary authority to enforce its rules.
Notably, a subsequent “Minute Entry” filed on March 8, 2022, indicates that the Office of Administrative Hearings (OAH) had been receiving further documents from the petitioners years after the case was closed. The OAH clarified that it no longer had jurisdiction and would take no further action on the matter.
1. Case Overview
The dispute was adjudicated by the Arizona Office of Administrative Hearings after the petitioners filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate on April 26, 2018.
Case Detail
Information
Case Number
18F-H1818047-REL
Petitioners
Michael and Nancy Berent
Respondent
Bell West Ranch Homeowners Association
Office of Administrative Hearings (Phoenix, Arizona)
Tammy L. Eigenheer
Hearing Dates
August 15, 2018, and August 22, 2018
Decision Date
September 11, 2018
2. Central Allegations and Rulings
At the hearing, the petitioners’ claims were clarified into four distinct allegations of violation by the HOA. The ALJ ruled against the petitioners on every count, finding they failed to provide sufficient evidence.
2.1. Allegation 1: Violation of CC&R Section 6.02 (ARC Membership)
• Petitioner’s Claim: Ms. Berent argued that the Architectural Review Committee (ARC) was not properly composed of the required three members when it approved the neighbor’s driveway application. Her evidence consisted of Board of Directors meeting minutes from 2015 and 2016 that listed only a single individual (Ken Hawkins or Larry Bolton) as presenting the ARC report. She contended this proved the ARC had only one member at those times.
• Respondent’s Position: Regis Salazar of VISION Community Management testified that the ARC consisted of three members at all relevant times. She explained that the meeting minutes cited by the petitioner merely identified the individual presenting the committee’s report to the board, not the entire committee’s membership.
• ALJ’s Conclusion:No violation found. The petitioners failed to establish a violation. The respondent’s testimony provided a credible explanation for the format of the meeting minutes, which was the petitioners’ only evidence for this claim.
2.2. Allegation 2: Violation of CC&R Section 8.02 (Structures & Municipal Codes)
• Petitioner’s Claim: Ms. Berent testified that the ARC should not have approved the driveway application because it demonstrated a clear violation of City of Surprise municipal codes on its face, specifically asserting the 10-foot extension caused the driveway to exceed 50 percent of the front lot line. The CC&Rs require structures to comply with municipal regulations.
• Respondent’s Position: Ms. Salazar stated that the HOA places the responsibility on each homeowner to ensure their projects comply with all applicable municipal codes. The ARC does not independently verify compliance. The approval notice sent to the neighbor explicitly stated, “You also must follow all local building codes and setback requirements, if applicable.“
• ALJ’s Conclusion:No violation found. The petitioners failed to establish that the driveway qualified as a “structure” under the definition relevant to Section 8.02. Furthermore, the judge noted that even if it were considered a structure, the HOA did not have a duty or responsibility under this CC&R section to pre-emptively enforce municipal codes.
2.3. Allegation 3: Violation of CC&R Section 8.06 (Obstruction of Easements)
• Petitioner’s Claim: Ms. Berent testified that a fire hydrant located near the property line constituted a “public utility easement” and that the neighbor’s driveway extension was a structure placed upon it, interfering with its use in violation of the CC&Rs.
• Respondent’s Position: Ms. Salazar testified she was not aware of any public utility easement associated with the fire hydrant.
• ALJ’s Conclusion:No violation found. The petitioners failed on two points. First, they presented “no evidence to establish that the fire hydrant at issue constituted a public utility easement.” Second, even assuming it was an easement, they failed to prove the driveway obstructed it. This conclusion was decisively supported by Ms. Berent’s own testimony, in which she “acknowledged… that a residential fire occurred two houses away from her and the fire department had to use the fire hydrant… the fire hose was running across Neighbors’ driveway during that time.” This demonstrated the hydrant remained fully accessible and usable.
2.4. Allegation 4: Violation of A.R.S. § 33-1803(B) (Failure to Enforce)
• Petitioner’s Claim: Ms. Berent argued that “common sense” required the HOA to enforce its CC&Rs and penalize the neighbors for the violations, drawing a comparison to the HOA sending her notices for weeds in her yard.
• Respondent’s Position: The HOA argued that it chose not to pursue enforcement action against the neighbors because the City of Surprise, after issuing an initial Notice of Ordinance Violation, had itself “declined to pursue any further enforcement action.”
• ALJ’s Conclusion:No violation found. The judge pointed to the “plain language” of the statute, which states the board of directors may impose penalties, establishing this as a discretionary power, not a mandatory duty. Nothing in the statute required the HOA to take enforcement action. The HOA’s decision not to act, mirroring the city’s own lack of follow-up, was a valid exercise of its authority.
3. Key Chronology of Events
• July 7, 2015: The petitioners’ neighbors submit an “Application for Design Review” to install a 10-foot by 35-foot concrete driveway extension.
• July 15, 2015: The HOA’s Architectural Review Committee (ARC) approves the application.
• July 17, 2015: VISION Community Management sends an approval notice to the neighbors with conditions, including adherence to a 13-inch property line setback and all local building codes.
• August 2015: The neighbors begin construction. The petitioners email the HOA board to complain about the project, questioning city approval and raising concerns about a nearby fire hydrant.
• May 16, 2016: The City of Surprise issues a “Notice of Ordinance Violation” to the neighbors, stating a “driveway extension was added contrary to code requirements.”
• Post-May 2016: The City of Surprise takes no further enforcement action against the neighbors.
• April 26, 2018: The Berents file their HOA Dispute Petition.
• August 15 & 22, 2018: The administrative hearing is held.
• September 11, 2018: The ALJ issues the final decision, ordering that the petition be dismissed in its entirety.
• March 8, 2022: The ALJ issues a “Minute Entry – Document Reject,” noting that the OAH has no jurisdiction and will not consider further documents submitted by the petitioners.
4. Post-Decision Developments
On March 8, 2022, nearly three and a half years after the case was closed, ALJ Tammy L. Eigenheer issued a “Minute Entry – Document Reject.” This entry states:
“It is unclear why the Office of Administrative Hearings was sent these documents as the decision in this matter was issued on September 11, 2018, and the Office of Administrative Hearings has had no jurisdiction in this matter since that time.”
The entry advises the petitioners that no documents sent after the decision would be considered and that “no further response will be provided from the Office of Administrative Hearings” for any future filings.
5. Quoted Provisions and Statutes
The case revolved around the interpretation of the following sections of the Bell West Ranch Homeowners Association CC&Rs and Arizona Revised Statutes.
• CC&R Section 6.02 (Membership):
• CC&R Section 8.02 (Restrictions Apply to All Structures):
• CC&R Section 8.06 (No Obstruction of Easements):
• A.R.S. § 33-1803(B):
Case Participants
Petitioner Side
Michael Berent(petitioner) Appeared on their own behalf
Nancy Berent(petitioner) Appeared on their own behalf; testified at hearing
Respondent Side
Maria Kupillas(HOA attorney) Represented Bell West Ranch Homeowners Association
Regis Salazar(witness) VISION Community Management Testified for Respondent
Ken Hawkins(ARC member) Presented Architectural Review Committee report at Board meeting
Larry Bolton(ARC member) Listed in ARC meeting minutes as committee member/presenter
Kelsey Dressen(HOA attorney) Copied on 2022 Minute Entry
In the initial decision, Petitioner established violations of A.R.S. § 33-1812(A)(7) (election materials disposal) and A.R.S. § 33-1804 (closed/improperly noticed meetings), but failed to establish a violation of Bylaw 2.4 (Issue 1). The rehearing only addressed Issue 1, which was ultimately dismissed.
Why this result: Petitioner lost Issue 1 (Bylaw 2.4 violation) because the ALJ found that while the Bylaw applied to Members, Petitioner failed to show it prohibited a Director from raising concerns about election validity after the meeting adjourned, and the investigation was initiated by a Board member immediately following the meeting.
Key Issues & Findings
Violation of Bylaw 2.4 (Election Objection Waiver)
Whether Respondent violated Bylaw 2.4 when it acted on an objection to the election results raised the day after the Annual Meeting, given that the Bylaw requires members to object to irregularities 'at the meeting' to avoid waiver.
Orders: The Petition was dismissed as to Issue 1.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 41-2198.01
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Analytics Highlights
Topics: HOA Dispute, Election Challenge, Bylaw Violation, Meeting Notice, Record Retention, Rehearing
Additional Citations:
A.R.S. § 33-1813
A.R.S. § 33-1811
A.R.S. § 33-1812
A.R.S. § 33-1804
Bylaw 3.3
Bylaw 2.4
Video Overview
Audio Overview
Decision Documents
18F-H1818035-REL Decision – 655766.pdf
Uploaded 2025-12-09T10:04:26 (113.2 KB)
18F-H1818035-REL Decision – 678304.pdf
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18F-H1818035-REL Decision – 678305.pdf
Uploaded 2025-10-09T03:32:44 (38.8 KB)
Briefing Doc – 18F-H1818035-REL
Barrs v. Desert Ranch HOA: Case Briefing
Executive Summary
This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.
An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.
The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.
Case Overview
This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.
Case Detail
Information
Case Number
18F-H1818035-REL-RHG
Petitioner
Tom Barrs
Respondent
Desert Ranch Homeowners’ Association
Presiding Judge
Tammy L. Eigenheer, Administrative Law Judge
Initial Hearing
Not specified in document
Rehearing Date
December 6, 2018
Decision Date
December 26, 2018
Key Individuals:
• Tom Barrs: Petitioner.
• Catherine Overby: HOA President, appeared for Respondent.
• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.
• Jerome Klinger: Candidate initially announced as a winner of the election.
• Patrick Rice: Board member at the time of the election.
Chronology of the 2017 Election Dispute
1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.
2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.
3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.
4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.
5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.
6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.
7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.
8. May 10, 2017: The Board of Directors holds an organizational meeting.
Procedural History and Allegations
Initial Petition and Hearing
• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.
• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.
• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”
The three core issues alleged by the petitioner were:
1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.
2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.
3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.
Initial Decision
Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:
• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.
• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.
• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.
Rehearing and Final Order
• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.
• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.
Judicial Analysis and Final Rulings
The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.
Key Bylaw and Legal Standard
• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:
• Burden of Proof: The petitioner bore the burden of proving the violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Analysis of Issue 1: Violation of Bylaw 2.4
• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.
• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.
• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.
◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.
◦ Bylaw 2.4 applies specifically to a “Member.”
◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.
◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.
Final Order
Based on the analysis from the rehearing, the judge issued the following order:
IT IS ORDERED that the Petition be dismissed as to Issue 1.
This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 18F-H1818035-REL
Study Guide: Barrs v. Desert Ranch Homeowners’ Association (No. 18F-H1818035-REL-RHG)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Tom Barrs and Respondent Desert Ranch Homeowners’ Association. 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 case’s facts, arguments, and legal conclusions.
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Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the provided source documents.
1. Who were the primary parties involved in case No. 18F-H1818035-REL-RHG, and what were their roles?
2. What specific event on March 18, 2017, served as the catalyst for the entire legal dispute?
3. What were the initial, announced results of the election held at the March 18, 2017, Annual Meeting?
4. According to the Petitioner, how did the HOA Board violate Bylaw 2.4 following the election?
5. In the initial hearing, which two of the Petitioner’s allegations were found to be valid violations committed by the Respondent?
6. Why did the Commissioner of the Arizona Department of Real Estate grant the Petitioner’s request for a rehearing?
7. During the rehearing on December 6, 2018, what was the single issue that the Petitioner chose to focus on for reconsideration?
8. According to the Administrative Law Judge’s findings, what action initiated the Board’s investigation into the election results, separate from Brian Schoeffler’s email?
9. How did the Judge’s interpretation of the terms “Member” and “Director” in the bylaws defeat the Petitioner’s primary argument on rehearing?
10. What was the final order issued by the Administrative Law Judge regarding Issue 1 after the conclusion of the rehearing?
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Answer Key
1. The primary parties were Tom Barrs, who served as the Petitioner, and the Desert Ranch Homeowners’ Association, which was the Respondent. The Petitioner, Mr. Barrs, appeared on his own behalf, while the Respondent was represented by its President, Catherine Overby, and Vice President, Brian Schoeffler.
2. The dispute was triggered by the election for two vacant seats on the HOA Board of Directors held during the Annual Meeting on March 18, 2017. The subsequent actions by the Board to investigate and ultimately overturn the initial results of this election led the Petitioner to file a dispute.
3. The initially announced results of the March 18, 2017, election declared that Ms. Catherine Overby and Mr. Jerome Klinger were the winning candidates. No members present at the meeting raised an objection to these announced results before the meeting was adjourned.
4. The Petitioner argued that the Board violated Bylaw 2.4 by acting on an objection to the election results raised by Brian Schoeffler the day after the meeting. The bylaw states that any member who fails to object to an irregularity during a meeting “forever waives that claim,” and the Petitioner argued Mr. Schoeffler, as a member, had waived his right to object.
5. In the initial hearing, the Judge found that the Petitioner successfully established two violations by the Respondent. These were a violation of A.R.S. § 33-1812(A)(7) for discarding ballot envelopes and a violation of A.R.S. § 33-1804 for holding closed meetings without proper notice.
6. The Commissioner granted the rehearing “for the reasons outlined in the Petitioner’s Rehearing Request.” The Petitioner’s request cited multiple grounds, including misconduct by the prevailing party, errors of law, and that the initial findings of fact were not supported by the evidence or were contrary to law.
7. At the rehearing, the Petitioner stated he was only seeking reconsideration of the initial decision as it related to Issue 1. This issue was the allegation that the Board improperly overturned the election results in violation of Bylaw 2.4.
8. The Judge found that the Board’s investigation was initiated by Mr. Patrick Rice, a Board member at the time, who expressed his concerns with the vote “immediately after the Annual Meeting adjourned.” This occurred prior to and independent of the email sent by Brian Schoeffler the following day.
9. The Judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific and non-interchangeable meanings. Because the Petitioner made no showing that a “Director” (like Mr. Rice) could not raise questions after a meeting, the restriction on “Members” in Bylaw 2.4 did not apply to the Board’s actions.
10. The final order stated that the Petition was to be dismissed as to Issue 1. The Judge concluded that the Petitioner failed to sustain his burden of proof to establish that the Respondent had violated Bylaw 2.4.
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Essay Questions
1. Analyze the timeline of events from the Annual Meeting on March 18, 2017, to the run-off election on April 29, 2017. Discuss the key actions taken by the HOA Board—including the meeting with an attorney and the discovery of invalid ballots—and explain how these actions led to the legal dispute.
2. Detail the three distinct issues the Petitioner alleged in his “Clarification of Three Issues alleged in Petition.” Based on the outcome of the initial hearing, evaluate the success of these claims and explain why the Petitioner prevailed on some issues but not others.
3. The Petitioner’s case on rehearing hinged on the interpretation of Bylaw 2.4. Construct the Petitioner’s argument regarding this bylaw and then fully explain the Administrative Law Judge’s legal reasoning for ultimately rejecting it, focusing on the distinction between “Members” and “Directors.”
4. Discuss the concept of “burden of proof” as it is defined and applied in this case. Explain the “preponderance of the evidence” standard and analyze how the Petitioner’s failure to meet this standard led to the dismissal of Issue 1 on rehearing.
5. Examine the procedural history of the case, from the initial single-issue petition to the final binding order after rehearing. What were the key procedural steps, such as amending the petition and filing for a rehearing, and how did these steps shape the final scope and outcome of the case?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S.
Abbreviation for Arizona Revised Statutes, the collection of laws for the State of Arizona. The Petitioner alleged violations of several statutes, including A.R.S. § 33-1813, § 33-1811, § 33-1812, and § 33-1804.
Bylaw 2.4
The specific bylaw of the Desert Ranch HOA that was the central focus of the rehearing. It states, “Any Member who fails to object to any perceived or actual irregularity at the meeting… forever waives that claim.”
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish the alleged violations.
Department
The Arizona Department of Real Estate, the state agency with which the Homeowners Association Dispute Process Petition was filed.
Director
An elected member of the HOA’s Board of Directors. The ALJ’s decision distinguished this role from that of a general “Member.”
Homeowners Association (HOA)
The governing organization for the planned community of Desert Ranch, responsible for enforcing community documents and statutes.
Member
A homeowner within the planned community. The ALJ’s decision emphasized that in the bylaws, this term has a specific meaning that is not interchangeable with “Director.”
Petitioner
The party who initiates a legal action or petition. In this case, the Petitioner was Tom Barrs.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”
Rehearing
A second hearing of a case, granted in this instance by the Commissioner of the Arizona Department of Real Estate, to reconsider the initial decision based on alleged errors.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Desert Ranch Homeowners’ Association.
Blog Post – 18F-H1818035-REL
5 Shocking Lessons from an HOA Election Gone Wrong
Introduction: When “The Rules” Aren’t What You Think
Homeowners’ Associations (HOAs) run on rules. From lawn maintenance to paint colors, the governing documents are the ultimate authority. But what happens when the rules themselves become the center of a dispute? Imagine this scenario: your HOA holds its annual board election. The results are announced, the winners are declared, and everyone goes home. Then, the next day, the board decides to overturn the result.
This isn’t a hypothetical. It’s the core of a real-life legal case that reveals surprising truths about community governance, the power of a single word, and what can happen when an election goes off the rails.
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1. An Election Isn’t Over Until the Board Says It’s Over
The dispute began at the Desert Ranch Homeowners’ Association Annual Meeting on March 18, 2017. The ballots for two open board seats were counted, and Catherine Overby and Jerome Klinger were announced as the winning candidates. Crucially, no members present raised an objection before the meeting adjourned. By all appearances, the election was over.
But it wasn’t. Immediately after the meeting, a board member, Mr. Rice, gathered the ballots and expressed his concerns with the election results. The next day, the losing candidate, Brian Schoeffler, sent an email asking the board to “review the situation” and consider a “revote.” The board then formally announced that the election had been contested and that it was obligated to investigate.
After consulting an attorney, the board discovered several ballot irregularities, including duplicate ballots and an improperly counted proxy ballot. This new tally resulted in a tie between Mr. Schoeffler and Mr. Klinger. The board then forced a run-off election, which Mr. Schoeffler ultimately won. While the losing candidate’s email drew attention, the true turning point had already occurred moments after the meeting ended, when a board member himself questioned the results—an act that would prove legally decisive.
2. A Single Word in the Bylaws Can Change Everything
The homeowner who filed the legal petition, Tom Barrs, built his case on a seemingly straightforward rule in the HOA’s bylaws. He argued that any challenge to the election was invalid because it wasn’t raised before the Annual Meeting adjourned. The bylaw in question, Section 2.4, reads:
Any Member who fails to object to any perceived or actual irregularity at the meeting (whether procedural, parliamentary, substantive or technical) forever waives that claim.
The petitioner’s argument was simple: the challenge was raised after the meeting by a “Member,” so the claim was waived. The case seemed open-and-shut.
However, the Administrative Law Judge made a critical distinction that decided the case. The judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific meanings and were not interchangeable. While a Member had to object during the meeting, the judge found no rule preventing a Director from raising questions later.
Because a board member, Mr. Rice, had expressed concerns immediately following the meeting, the board’s subsequent investigation was deemed permissible. This razor-thin interpretation of a single word highlights the immense power that definitions and precise language hold in governing documents.
3. The Board Broke the Law, But Still Won on the Main Issue
In a surprising twist, the judge determined that the HOA had, in fact, violated Arizona state law on two separate counts during the election controversy. The petitioner successfully proved that the board failed to follow established statutes.
The two violations established in the initial hearing were:
• Improper Destruction of Ballots: The HOA violated A.R.S. § 33-1812(A)(7) when it destroyed all of the ballot envelopes around the time of the election. This act made a true, verifiable recount impossible, directly undermining the integrity of the very election the board was claiming to investigate.
• Improper Meetings: The HOA violated A.R.S. § 33-1804 by holding closed meetings without providing proper notice to the members, particularly a meeting at the home of a board member, Ms. Overby, where the decision to hold a run-off was made. By making these critical decisions behind closed doors, the board created an appearance of secrecy that fueled the dispute and eroded member trust.
Despite proving these clear legal violations, the petitioner still lost on his primary complaint—overturning the run-off and reinstating the original election results. This outcome serves as a stark example of a pyrrhic victory. You can successfully prove that an organization broke the rules without achieving your ultimate goal in the dispute.
4. An Investigation Can Uncover a Cascade of Deeper Problems
The board’s decision to contest its own election results was controversial, but the subsequent investigation brought a cascade of other procedural failures to light. The initial challenge acted like a pulled thread that unraveled a series of previously unknown mistakes.
During the board’s meeting with its attorney, it was discovered that “duplicate ballots and a proxy ballot that were improperly counted” had skewed the original vote. This alone was enough to call the first result into question.
Furthermore, the board itself asserted that its own bylaws “did not allow for a write-in candidate.” This was a significant admission, as one of the original winners, Jerome Klinger, had been a write-in. If true, his victory would have been invalid from the start, regardless of any other challenges. The board’s investigation, initiated to resolve one perceived error, ended up exposing its own systemic incompetence—from improperly counting ballots to being unaware of its own rules regarding write-in candidates. The effort to fix the election proved the election was fundamentally broken from the start.
5. An HOA Board Can Investigate Itself
The petitioner’s case rested on the idea that board members are also “Members” of the association and are therefore bound by the same rules. If a regular member had to object during the meeting, a director should have to as well.
The judge rejected this argument, implicitly affirming the board’s higher-level fiduciary duty to ensure a fair and legal election. The final decision made it clear that the bylaws used “Member” and “Director” with distinct meanings and responsibilities. The bylaw requiring members to object during the meeting was the mechanism for an individual’s challenge; it did not override the board’s inherent duty to govern properly.
The key takeaway from the judge’s decision was unambiguous: The petitioner “made no showing that a Director could not raise questions as to the validity of the election results after the meeting adjourned.” This legally affirms a board’s power to investigate its own processes, a responsibility separate from the rules that govern challenges from the general membership.
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Conclusion: Have You Read Your Bylaws Lately?
This case serves as a powerful reminder that the dense, legalistic language of HOA governing documents is not just boilerplate. These documents have immense real-world power, dictating the outcomes of contentious disputes and shaping the governance of a community. The intricate details and specific wording can mean the difference between a final result and one that is just the beginning of a long and costly fight.
This entire, year-long legal battle hinged on the definition of a single word. When was the last time you read the fine print governing your own community?
Case Participants
Petitioner Side
Tom Barrs(petitioner) Appeared on his own behalf,.
Stephen Barrs(witness) Testified for Petitioner,.
Respondent Side
Catherine Overby(board member/president) Desert Ranch HOA Appeared on behalf of Respondent,; Board President,; testified at hearing,.
Brian Schoeffler(board member/vice president) Desert Ranch HOA Appeared on behalf of Respondent,; Board Vice President,; testified at hearing,.
Patrick Rice(board member) Desert Ranch HOA Board member who expressed concerns immediately after the meeting,,,; involved in meeting with attorney,.
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner (ADRE)) Arizona Department of Real Estate Issued Order Granting Rehearing; recipient of decision copy,.
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
djones(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
ncano(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
Other Participants
Jerome Klinger(board director) Desert Ranch HOA Initially announced as a winning candidate for director,; later removed after contest; involved in run-off,.
Paula Barrs(listed resident) Listed with Tom Barrs on mailing address.
Petitioner was deemed the prevailing party on Issues 2 (retention of election materials) and 3 (open meetings violation). Issue 1 (Bylaw 2.4 objection rule) was dismissed. Respondent was ordered to pay Petitioner $1,000.00, representing the filing fee.
Why this result: Petitioner failed to establish a violation of Bylaw 2.4 as the evidence did not show that a Director was restricted by the Member waiver clause from raising concerns about election validity after the meeting adjourned.
Key Issues & Findings
Respondent violated Bylaw 2.4 when it acted on Mr. Schoeffler’s objection to the election results raised the day after the Annual Meeting.
Petitioner alleged the HOA violated Bylaw 2.4 by investigating or acting upon an objection to election results that was raised by a Director after the Annual Meeting adjourned, thereby waiving the claim according to the bylaw.
Orders: Petition dismissed as to Issue 1.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
Desert Ranch Bylaw 2.4
Respondent violated A.R.S. § 33-1812(A)(7) when it discarded the ballot envelopes at or about the time of the election.
The HOA discarded the ballot envelopes at or about the time of the election, which violated the statutory mandate to retain ballots, envelopes, and related materials for at least one year.
Orders: Petitioner established violation and was deemed the prevailing party regarding this issue. No Civil Penalty was found appropriate. The initial order included an order for Respondent to pay Petitioner the $1,000.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1812(A)(7)
Respondent violated A.R.S. § 33-1804 when it held meetings that were closed and/or without proper notice.
The HOA Board members met with an attorney following the Annual Meeting without providing any notice of the upcoming meeting and/or failing to provide notice that the meeting was closed because it involved legal advice from an attorney.
Orders: Petitioner established violation and was deemed the prevailing party regarding this issue. No Civil Penalty was found appropriate. The initial order included an order for Respondent to pay Petitioner the $1,000.00 filing fee.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1804
Analytics Highlights
Topics: HOA Election Dispute, Records Retention, Open Meeting Violation, Filing Fee Refund
Additional Citations:
A.R.S. § 33-1812(A)(7)
A.R.S. § 33-1804
Desert Ranch Bylaw 2.4
A.R.S. § 41-2198.01
Video Overview
Audio Overview
Decision Documents
18F-H1818035-REL Decision – 655766.pdf
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18F-H1818035-REL Decision – 678304.pdf
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18F-H1818035-REL Decision – 678305.pdf
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Briefing Doc – 18F-H1818035-REL
Barrs v. Desert Ranch HOA: Case Briefing
Executive Summary
This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.
An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.
The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.
Case Overview
This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.
Case Detail
Information
Case Number
18F-H1818035-REL-RHG
Petitioner
Tom Barrs
Respondent
Desert Ranch Homeowners’ Association
Presiding Judge
Tammy L. Eigenheer, Administrative Law Judge
Initial Hearing
Not specified in document
Rehearing Date
December 6, 2018
Decision Date
December 26, 2018
Key Individuals:
• Tom Barrs: Petitioner.
• Catherine Overby: HOA President, appeared for Respondent.
• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.
• Jerome Klinger: Candidate initially announced as a winner of the election.
• Patrick Rice: Board member at the time of the election.
Chronology of the 2017 Election Dispute
1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.
2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.
3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.
4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.
5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.
6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.
7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.
8. May 10, 2017: The Board of Directors holds an organizational meeting.
Procedural History and Allegations
Initial Petition and Hearing
• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.
• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.
• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”
The three core issues alleged by the petitioner were:
1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.
2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.
3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.
Initial Decision
Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:
• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.
• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.
• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.
Rehearing and Final Order
• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.
• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.
• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.
Judicial Analysis and Final Rulings
The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.
Key Bylaw and Legal Standard
• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:
• Burden of Proof: The petitioner bore the burden of proving the violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
Analysis of Issue 1: Violation of Bylaw 2.4
• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.
• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.
• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.
◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.
◦ Bylaw 2.4 applies specifically to a “Member.”
◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.
◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.
Final Order
Based on the analysis from the rehearing, the judge issued the following order:
IT IS ORDERED that the Petition be dismissed as to Issue 1.
This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 18F-H1818035-REL
Study Guide: Barrs v. Desert Ranch Homeowners’ Association (No. 18F-H1818035-REL-RHG)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Tom Barrs and Respondent Desert Ranch Homeowners’ Association. 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 case’s facts, arguments, and legal conclusions.
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Short-Answer Quiz
Answer each of the following questions in 2-3 sentences based on the provided source documents.
1. Who were the primary parties involved in case No. 18F-H1818035-REL-RHG, and what were their roles?
2. What specific event on March 18, 2017, served as the catalyst for the entire legal dispute?
3. What were the initial, announced results of the election held at the March 18, 2017, Annual Meeting?
4. According to the Petitioner, how did the HOA Board violate Bylaw 2.4 following the election?
5. In the initial hearing, which two of the Petitioner’s allegations were found to be valid violations committed by the Respondent?
6. Why did the Commissioner of the Arizona Department of Real Estate grant the Petitioner’s request for a rehearing?
7. During the rehearing on December 6, 2018, what was the single issue that the Petitioner chose to focus on for reconsideration?
8. According to the Administrative Law Judge’s findings, what action initiated the Board’s investigation into the election results, separate from Brian Schoeffler’s email?
9. How did the Judge’s interpretation of the terms “Member” and “Director” in the bylaws defeat the Petitioner’s primary argument on rehearing?
10. What was the final order issued by the Administrative Law Judge regarding Issue 1 after the conclusion of the rehearing?
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Answer Key
1. The primary parties were Tom Barrs, who served as the Petitioner, and the Desert Ranch Homeowners’ Association, which was the Respondent. The Petitioner, Mr. Barrs, appeared on his own behalf, while the Respondent was represented by its President, Catherine Overby, and Vice President, Brian Schoeffler.
2. The dispute was triggered by the election for two vacant seats on the HOA Board of Directors held during the Annual Meeting on March 18, 2017. The subsequent actions by the Board to investigate and ultimately overturn the initial results of this election led the Petitioner to file a dispute.
3. The initially announced results of the March 18, 2017, election declared that Ms. Catherine Overby and Mr. Jerome Klinger were the winning candidates. No members present at the meeting raised an objection to these announced results before the meeting was adjourned.
4. The Petitioner argued that the Board violated Bylaw 2.4 by acting on an objection to the election results raised by Brian Schoeffler the day after the meeting. The bylaw states that any member who fails to object to an irregularity during a meeting “forever waives that claim,” and the Petitioner argued Mr. Schoeffler, as a member, had waived his right to object.
5. In the initial hearing, the Judge found that the Petitioner successfully established two violations by the Respondent. These were a violation of A.R.S. § 33-1812(A)(7) for discarding ballot envelopes and a violation of A.R.S. § 33-1804 for holding closed meetings without proper notice.
6. The Commissioner granted the rehearing “for the reasons outlined in the Petitioner’s Rehearing Request.” The Petitioner’s request cited multiple grounds, including misconduct by the prevailing party, errors of law, and that the initial findings of fact were not supported by the evidence or were contrary to law.
7. At the rehearing, the Petitioner stated he was only seeking reconsideration of the initial decision as it related to Issue 1. This issue was the allegation that the Board improperly overturned the election results in violation of Bylaw 2.4.
8. The Judge found that the Board’s investigation was initiated by Mr. Patrick Rice, a Board member at the time, who expressed his concerns with the vote “immediately after the Annual Meeting adjourned.” This occurred prior to and independent of the email sent by Brian Schoeffler the following day.
9. The Judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific and non-interchangeable meanings. Because the Petitioner made no showing that a “Director” (like Mr. Rice) could not raise questions after a meeting, the restriction on “Members” in Bylaw 2.4 did not apply to the Board’s actions.
10. The final order stated that the Petition was to be dismissed as to Issue 1. The Judge concluded that the Petitioner failed to sustain his burden of proof to establish that the Respondent had violated Bylaw 2.4.
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Essay Questions
1. Analyze the timeline of events from the Annual Meeting on March 18, 2017, to the run-off election on April 29, 2017. Discuss the key actions taken by the HOA Board—including the meeting with an attorney and the discovery of invalid ballots—and explain how these actions led to the legal dispute.
2. Detail the three distinct issues the Petitioner alleged in his “Clarification of Three Issues alleged in Petition.” Based on the outcome of the initial hearing, evaluate the success of these claims and explain why the Petitioner prevailed on some issues but not others.
3. The Petitioner’s case on rehearing hinged on the interpretation of Bylaw 2.4. Construct the Petitioner’s argument regarding this bylaw and then fully explain the Administrative Law Judge’s legal reasoning for ultimately rejecting it, focusing on the distinction between “Members” and “Directors.”
4. Discuss the concept of “burden of proof” as it is defined and applied in this case. Explain the “preponderance of the evidence” standard and analyze how the Petitioner’s failure to meet this standard led to the dismissal of Issue 1 on rehearing.
5. Examine the procedural history of the case, from the initial single-issue petition to the final binding order after rehearing. What were the key procedural steps, such as amending the petition and filing for a rehearing, and how did these steps shape the final scope and outcome of the case?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions. In this case, the ALJ was Tammy L. Eigenheer.
A.R.S.
Abbreviation for Arizona Revised Statutes, the collection of laws for the State of Arizona. The Petitioner alleged violations of several statutes, including A.R.S. § 33-1813, § 33-1811, § 33-1812, and § 33-1804.
Bylaw 2.4
The specific bylaw of the Desert Ranch HOA that was the central focus of the rehearing. It states, “Any Member who fails to object to any perceived or actual irregularity at the meeting… forever waives that claim.”
Burden of Proof
The legal obligation of a party in a dispute to provide sufficient evidence to support their claim. In this case, the Petitioner bore the burden of proof to establish the alleged violations.
Department
The Arizona Department of Real Estate, the state agency with which the Homeowners Association Dispute Process Petition was filed.
Director
An elected member of the HOA’s Board of Directors. The ALJ’s decision distinguished this role from that of a general “Member.”
Homeowners Association (HOA)
The governing organization for the planned community of Desert Ranch, responsible for enforcing community documents and statutes.
Member
A homeowner within the planned community. The ALJ’s decision emphasized that in the bylaws, this term has a specific meaning that is not interchangeable with “Director.”
Petitioner
The party who initiates a legal action or petition. In this case, the Petitioner was Tom Barrs.
Preponderance of the Evidence
The evidentiary standard required for the Petitioner to win the case. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not.”
Rehearing
A second hearing of a case, granted in this instance by the Commissioner of the Arizona Department of Real Estate, to reconsider the initial decision based on alleged errors.
Respondent
The party against whom a petition is filed. In this case, the Respondent was the Desert Ranch Homeowners’ Association.
Blog Post – 18F-H1818035-REL
5 Shocking Lessons from an HOA Election Gone Wrong
Introduction: When “The Rules” Aren’t What You Think
Homeowners’ Associations (HOAs) run on rules. From lawn maintenance to paint colors, the governing documents are the ultimate authority. But what happens when the rules themselves become the center of a dispute? Imagine this scenario: your HOA holds its annual board election. The results are announced, the winners are declared, and everyone goes home. Then, the next day, the board decides to overturn the result.
This isn’t a hypothetical. It’s the core of a real-life legal case that reveals surprising truths about community governance, the power of a single word, and what can happen when an election goes off the rails.
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1. An Election Isn’t Over Until the Board Says It’s Over
The dispute began at the Desert Ranch Homeowners’ Association Annual Meeting on March 18, 2017. The ballots for two open board seats were counted, and Catherine Overby and Jerome Klinger were announced as the winning candidates. Crucially, no members present raised an objection before the meeting adjourned. By all appearances, the election was over.
But it wasn’t. Immediately after the meeting, a board member, Mr. Rice, gathered the ballots and expressed his concerns with the election results. The next day, the losing candidate, Brian Schoeffler, sent an email asking the board to “review the situation” and consider a “revote.” The board then formally announced that the election had been contested and that it was obligated to investigate.
After consulting an attorney, the board discovered several ballot irregularities, including duplicate ballots and an improperly counted proxy ballot. This new tally resulted in a tie between Mr. Schoeffler and Mr. Klinger. The board then forced a run-off election, which Mr. Schoeffler ultimately won. While the losing candidate’s email drew attention, the true turning point had already occurred moments after the meeting ended, when a board member himself questioned the results—an act that would prove legally decisive.
2. A Single Word in the Bylaws Can Change Everything
The homeowner who filed the legal petition, Tom Barrs, built his case on a seemingly straightforward rule in the HOA’s bylaws. He argued that any challenge to the election was invalid because it wasn’t raised before the Annual Meeting adjourned. The bylaw in question, Section 2.4, reads:
Any Member who fails to object to any perceived or actual irregularity at the meeting (whether procedural, parliamentary, substantive or technical) forever waives that claim.
The petitioner’s argument was simple: the challenge was raised after the meeting by a “Member,” so the claim was waived. The case seemed open-and-shut.
However, the Administrative Law Judge made a critical distinction that decided the case. The judge noted that throughout the bylaws, the terms “Member,” “Directors,” and “Board of Directors” were used with specific meanings and were not interchangeable. While a Member had to object during the meeting, the judge found no rule preventing a Director from raising questions later.
Because a board member, Mr. Rice, had expressed concerns immediately following the meeting, the board’s subsequent investigation was deemed permissible. This razor-thin interpretation of a single word highlights the immense power that definitions and precise language hold in governing documents.
3. The Board Broke the Law, But Still Won on the Main Issue
In a surprising twist, the judge determined that the HOA had, in fact, violated Arizona state law on two separate counts during the election controversy. The petitioner successfully proved that the board failed to follow established statutes.
The two violations established in the initial hearing were:
• Improper Destruction of Ballots: The HOA violated A.R.S. § 33-1812(A)(7) when it destroyed all of the ballot envelopes around the time of the election. This act made a true, verifiable recount impossible, directly undermining the integrity of the very election the board was claiming to investigate.
• Improper Meetings: The HOA violated A.R.S. § 33-1804 by holding closed meetings without providing proper notice to the members, particularly a meeting at the home of a board member, Ms. Overby, where the decision to hold a run-off was made. By making these critical decisions behind closed doors, the board created an appearance of secrecy that fueled the dispute and eroded member trust.
Despite proving these clear legal violations, the petitioner still lost on his primary complaint—overturning the run-off and reinstating the original election results. This outcome serves as a stark example of a pyrrhic victory. You can successfully prove that an organization broke the rules without achieving your ultimate goal in the dispute.
4. An Investigation Can Uncover a Cascade of Deeper Problems
The board’s decision to contest its own election results was controversial, but the subsequent investigation brought a cascade of other procedural failures to light. The initial challenge acted like a pulled thread that unraveled a series of previously unknown mistakes.
During the board’s meeting with its attorney, it was discovered that “duplicate ballots and a proxy ballot that were improperly counted” had skewed the original vote. This alone was enough to call the first result into question.
Furthermore, the board itself asserted that its own bylaws “did not allow for a write-in candidate.” This was a significant admission, as one of the original winners, Jerome Klinger, had been a write-in. If true, his victory would have been invalid from the start, regardless of any other challenges. The board’s investigation, initiated to resolve one perceived error, ended up exposing its own systemic incompetence—from improperly counting ballots to being unaware of its own rules regarding write-in candidates. The effort to fix the election proved the election was fundamentally broken from the start.
5. An HOA Board Can Investigate Itself
The petitioner’s case rested on the idea that board members are also “Members” of the association and are therefore bound by the same rules. If a regular member had to object during the meeting, a director should have to as well.
The judge rejected this argument, implicitly affirming the board’s higher-level fiduciary duty to ensure a fair and legal election. The final decision made it clear that the bylaws used “Member” and “Director” with distinct meanings and responsibilities. The bylaw requiring members to object during the meeting was the mechanism for an individual’s challenge; it did not override the board’s inherent duty to govern properly.
The key takeaway from the judge’s decision was unambiguous: The petitioner “made no showing that a Director could not raise questions as to the validity of the election results after the meeting adjourned.” This legally affirms a board’s power to investigate its own processes, a responsibility separate from the rules that govern challenges from the general membership.
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Conclusion: Have You Read Your Bylaws Lately?
This case serves as a powerful reminder that the dense, legalistic language of HOA governing documents is not just boilerplate. These documents have immense real-world power, dictating the outcomes of contentious disputes and shaping the governance of a community. The intricate details and specific wording can mean the difference between a final result and one that is just the beginning of a long and costly fight.
This entire, year-long legal battle hinged on the definition of a single word. When was the last time you read the fine print governing your own community?
Case Participants
Petitioner Side
Tom Barrs(petitioner) Appeared on his own behalf,.
Stephen Barrs(witness) Testified for Petitioner,.
Respondent Side
Catherine Overby(board member/president) Desert Ranch HOA Appeared on behalf of Respondent,; Board President,; testified at hearing,.
Brian Schoeffler(board member/vice president) Desert Ranch HOA Appeared on behalf of Respondent,; Board Vice President,; testified at hearing,.
Patrick Rice(board member) Desert Ranch HOA Board member who expressed concerns immediately after the meeting,,,; involved in meeting with attorney,.
Neutral Parties
Tammy L. Eigenheer(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner (ADRE)) Arizona Department of Real Estate Issued Order Granting Rehearing; recipient of decision copy,.
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
djones(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
ncano(ADRE staff) Arizona Department of Real Estate Recipient of decision copy.
Other Participants
Jerome Klinger(board director) Desert Ranch HOA Initially announced as a winning candidate for director,; later removed after contest; involved in run-off,.
Paula Barrs(listed resident) Listed with Tom Barrs on mailing address.
