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Michael Stoltenberg vs Rancho Del Oro Homeowners Association

Posted on April 3, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918038-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-04-03
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael Stoltenberg	Counsel	—
Respondent	Rancho Del Oro Homeowners Association	Counsel	Nicole D. Payne

Alleged Violations

CC&Rs §§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.

Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.

Key Issues & Findings

HOA Assessment Uniformity Requirement

Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• CC&Rs § 4.1
• CC&Rs § 5.1(a)
• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• Powell v. Washburn, 211 Ariz. 553
• Vazanno v. Superior Court, 74 Ariz. 369

Analytics Highlights

Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance

Additional Citations:

• 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)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

19F-H1918038-REL Decision – 698869.pdf

Uploaded 2025-10-08T07:08:35 (141.7 KB)

Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.

The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.

Case Overview

• Case Number: 19F-H1918038-REL

• Parties Involved:

◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.

◦ Respondent: Rancho Del Oro Homeowners Association (HOA).

• Hearing Date: March 19, 2019

• Presiding Judge: Diane Mihalsky, Administrative Law Judge

• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.

Petitioner’s Position and Evidence (Michael Stoltenberg)

The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.

• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.

• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.

• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:

1. To install irrigation pipes connecting his lot to a new community well.

2. To perform any landscape maintenance on his front yard.

• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.

Respondent’s Position and Evidence (Rancho Del Oro HOA)

The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.

• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.

• Key Testimony (Diana Crites, Property Manager):

◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.

◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.

◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.

◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.

• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):

◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.

◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”

◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.

Analysis of Governing Documents (CC&Rs)

The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.

CC&R Section

Key Language

Implication & Ruling

Article IV, Section 4.1

Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”

This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.

Article V, Section 5.1(a)

“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”

This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.

Legal Conclusions and Final Order

• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.

• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.

• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”

• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.

Michael Stoltenberg vs Rancho Del Oro Homeowners Association

Posted on April 3, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918038-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-04-03
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michael Stoltenberg	Counsel	—
Respondent	Rancho Del Oro Homeowners Association	Counsel	Nicole D. Payne

Alleged Violations

CC&Rs §§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the HOA acted in accordance with its governing documents (CC&Rs § 4.1) by imposing uniform assessments. The CC&Rs did not provide an exception for reduced assessments based on an owner's choice of landscaping (rock yard) or refusal of HOA maintenance services.

Why this result: Petitioner failed to meet the burden of proof that the Respondent violated its CC&Rs, as CC&R § 4.1 requires uniform assessment and no provision requires or allows Respondent to assess Petitioner less due to his rock yard and refusal of maintenance.

Key Issues & Findings

HOA Assessment Uniformity Requirement

Petitioner, who had rock landscaping and refused HOA maintenance, alleged the HOA violated CC&Rs by assessing him uniform dues, arguing he should pay less since HOA expenditures on lawn maintenance were substantial and primarily benefited neighbors with grass yards.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• CC&Rs § 4.1
• CC&Rs § 5.1(a)
• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• Powell v. Washburn, 211 Ariz. 553
• Vazanno v. Superior Court, 74 Ariz. 369

Analytics Highlights

Topics: HOA Assessment, Uniform Dues, CC&R Enforcement, Landscaping Maintenance

Additional Citations:

• 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)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

19F-H1918038-REL Decision – 698869.pdf

Uploaded 2025-10-09T03:33:59 (141.7 KB)

Briefing Document: Stoltenberg v. Rancho Del Oro Homeowners Association

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in case number 19F-H1918038-REL, concerning a dispute between homeowner Michael Stoltenberg and the Rancho Del Oro Homeowners Association (HOA). The core conflict centered on Mr. Stoltenberg’s claim that he should pay lower HOA assessments because his property has rock landscaping, while his neighbors have grass yards requiring more costly maintenance by the HOA.

The Administrative Law Judge ultimately denied the petition. The decision rested on an unambiguous interpretation of the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). The Judge found that the CC&Rs explicitly obligate the HOA to maintain landscaping on all individual lots and, crucially, require assessments to be uniform for all members to cover these “common expenses.” The petitioner’s argument for a reduced assessment was unsupported by any provision in the governing documents. Furthermore, evidence showed that Mr. Stoltenberg had actively refused the HOA access to his property to install a community irrigation system and to perform the very landscaping maintenance that is a central component of the assessments.

Case Overview

• Case Number: 19F-H1918038-REL

• Parties Involved:

◦ Petitioner: Michael Stoltenberg, a homeowner at 11777 E. Calle Gaudi, Rancho Del Oro.

◦ Respondent: Rancho Del Oro Homeowners Association (HOA).

• Hearing Date: March 19, 2019

• Presiding Judge: Diane Mihalsky, Administrative Law Judge

• Core Allegation: On December 29, 2018, the Petitioner filed a petition alleging the HOA violated multiple sections of its CC&Rs (§§ 1.8, 1.9, 2.1, 3.1, 4.1, 4.2, 4.3, 5.1, and 14.2) by levying the same assessment fees on his property as on neighboring properties with grass lawns.

Petitioner’s Position and Evidence (Michael Stoltenberg)

The Petitioner’s case was built on the argument of fairness, contending that his assessment should be lower because his property does not utilize the HOA’s most expensive landscaping services.

• Primary Argument: It is inequitable for the HOA to charge him the same amount as neighbors with grass yards, given that his front yard is rock and does not receive the same level of maintenance.

• Financial Evidence: The Petitioner testified that in 2016, the HOA spent $54,000 on lawn maintenance and landscaping, which constituted 39% of its total budget.

• Refusal of Services: The Petitioner acknowledged that he refused to allow the HOA access to his property for two key purposes:

1. To install irrigation pipes connecting his lot to a new community well.

2. To perform any landscape maintenance on his front yard.

• Justification for Refusal: The Petitioner accused the HOA of previously killing his trees during maintenance activities and stated that he now undertakes all maintenance of his own yard.

Respondent’s Position and Evidence (Rancho Del Oro HOA)

The HOA’s defense was grounded in its adherence to the plain language of its governing documents, arguing that its actions were not only permissible but mandated by the CC&Rs.

• Primary Argument: The HOA is legally bound by its CC&Rs to levy uniform assessments on all members and is simultaneously obligated to maintain the landscaping on every individual lot.

• Key Testimony (Diana Crites, Property Manager):

◦ CC&R § 5.1(a) explicitly requires the HOA to maintain the yards of its members.

◦ CC&R § 4.1 requires all owners to be assessed uniformly, without regard to the type of landscaping they have chosen or whether they permit the HOA to perform its maintenance duties.

◦ The Petitioner’s property is one of eight constructed by a different developer, who did not originally install grass or an irrigation system.

◦ The HOA has since drilled a community well to address water costs and has offered to remove rock and install grass for these properties, an offer the Petitioner could accept.

• Supporting Evidence (Letter from Dawn Simpson, former bookkeeper):

◦ A 2013 HOA project was initiated to install a community well for landscaping and to connect all homes, including the Petitioner’s.

◦ The letter details an incident where the Petitioner “became very heated with [the] contractor” and “declared that no one was to enter his yard for any purpose.”

◦ This action directly halted all construction to connect his property to the irrigation system and ceased all landscaping services provided by the HOA.

Analysis of Governing Documents (CC&Rs)

The judge’s decision centered on the clear, unambiguous language of specific articles within the CC&Rs. The petitioner failed to identify any language that would permit or require a non-uniform assessment.

CC&R Section

Key Language

Implication & Ruling

Article IV, Section 4.1

Assessments “shall be used for the… common benefit… of the Owners” and “shall constitute common expenses for which the apartment owners shall be severally liable in proportion to their respective common interests.”

This establishes the principle of uniform, shared liability for common expenses, regardless of an individual owner’s specific use of a particular service.

Article V, Section 5.1(a)

“The Association shall maintain… landscaping… It shall also include maintenance of the landscaping on individual Lots outside of structures.”

This article imposes a direct obligation on the HOA to maintain all members’ landscaping, not merely an optional service.

Legal Conclusions and Final Order

• Burden of Proof: The decision established that the Petitioner, Mr. Stoltenberg, held the burden to prove by a “preponderance of the evidence” that the HOA had violated its CC&Rs.

• Interpretation of Covenants: In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties. The judge found the CC&Rs to be unambiguous, requiring a holistic interpretation. The documents clearly mandate that the HOA must maintain all yards and must assess all members equally to fund that maintenance.

• Final Ruling: The Petitioner did not meet his burden of proof. He failed to point to any provision within the CC&Rs that “allows, much less requires, Respondent to assess Petitioner less because he has a rock yard and will not allow Respondent to maintain his yard.”

• Order: The petition was denied. The HOA’s practice of charging uniform assessments was upheld as compliant with its governing documents.

Linda Curtin vs. The Ridge at Diamante del Lago Homeowners

Posted on March 5, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918034-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-03-05
Administrative Law Judge	Diane Mihalsky
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Linda Curtin	Counsel	—
Respondent	The Ridge at Diamante del Lago Homeowners Association, Inc.	Counsel	—

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.

Key Issues & Findings

Failure to provide timely access to association financial records

Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.

Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1805(A)
• CC&R § 4.8

Analytics Highlights

Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement

Additional Citations:

• A.R.S. § 33-1805(A)
• CC&R § 4.8
• 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)

Audio Overview

Decision Documents

19F-H1918034-REL Decision – 692859.pdf

Uploaded 2025-10-08T07:08:23 (151.9 KB)

Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.

The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.

Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.

——————————————————————————–

I. Case Overview

• Case Number: 19F-H1918034-REL

• Forum: Arizona Office of Administrative Hearings

• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.

• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.

• Administrative Law Judge: Diane Mihalsky

• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.

II. Governing Rules and Statutes

The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.

Rule/Statute

Key Provision

CC&R § 4.8

Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.

A.R.S. § 33-1805(A)

Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.

The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.

III. Chronology of the Dispute

The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.

• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.

• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”

• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).

• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”

• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.

• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.

• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.

• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.

• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.

• February 20, 2019: An evidentiary hearing is held before the ALJ.

IV. Analysis of Evidence and Arguments

A. Petitioner’s Position

Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.

• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.

• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.

• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:

◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.

◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.

◦ The HOA’s ACC approval process was not followed for the wall.

◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).

B. Respondent’s Position

The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.

• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.

• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.

• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.

• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.

V. Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.

A. Conclusions of Law

1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”

2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”

3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.

B. Recommended Order

Based on the findings, the ALJ issued a two-part order:

1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).

2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.

The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.

Linda Curtin vs. The Ridge at Diamante del Lago Homeowners

Posted on March 5, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918034-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-03-05
Administrative Law Judge	Diane Mihalsky
Outcome	full
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Linda Curtin	Counsel	—
Respondent	The Ridge at Diamante del Lago Homeowners Association, Inc.	Counsel	—

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

Petitioner established that Respondent violated A.R.S. § 33-1805(A) by failing to provide access to requested association records within the statutory ten-day period. The petition was granted and Respondent was ordered to reimburse the $500.00 filing fee.

Key Issues & Findings

Failure to provide timely access to association financial records

Petitioner filed a single-issue petition alleging Respondent violated CC&Rs § 4.8 and A.R.S. § 33-1805 by refusing to make available association records or to produce a receipt identifying a contractor and the amount paid for a cinderblock wall built by the community’s clubhouse.

Orders: The petition was granted because Respondent violated A.R.S. § 33-1805(A) by failing to provide access to records within ten days of Petitioner’s September 12, 2018 request. Respondent was ordered to reimburse the $500.00 filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

• A.R.S. § 33-1805(A)
• CC&R § 4.8

Analytics Highlights

Topics: HOA Records, Record Inspection, Timely Disclosure, Statutory Violation, Filing Fee Reimbursement

Additional Citations:

• A.R.S. § 33-1805(A)
• CC&R § 4.8
• 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)

Audio Overview

Decision Documents

19F-H1918034-REL Decision – 692859.pdf

Uploaded 2025-10-09T03:33:53 (151.9 KB)

Briefing Document: Curtin v. The Ridge at Diamante del Lago HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge (ALJ) Decision in case number 19F-H1918034-REL, a dispute between homeowner Linda Curtin and The Ridge at Diamante del Lago Homeowners Association, Inc. (HOA). The central conflict arose from the HOA’s failure to provide financial records related to a small construction project within the timeframe mandated by Arizona law.

The petitioner, Ms. Curtin, alleged that the HOA violated its own Covenants, Conditions, and Restrictions (CC&Rs) and Arizona Revised Statutes (A.R.S.) § 33-1805 by not producing an invoice for a $1,000 cinderblock wall project at the community clubhouse. While the HOA did eventually provide the requested records, the ALJ found that it failed to do so within the legally required ten-day period following Ms. Curtin’s formal written request on September 12, 2018.

Consequently, the ALJ granted the petition in favor of Ms. Curtin, ruling that the HOA was in violation of A.R.S. § 33-1805(A). The HOA was ordered to reimburse Ms. Curtin for her $500 petition filing fee. However, the ALJ dismissed all of the petitioner’s ancillary complaints, including suspicions of forgery, concerns about the contractor’s licensing status, and other issues of HOA governance, deeming them either unsubstantiated or outside the narrow scope of the single-issue petition. The ruling underscores the strict procedural compliance required of HOAs regarding member record requests while limiting the scope of such legal challenges to the specific violations alleged.

——————————————————————————–

I. Case Overview

• Case Number: 19F-H1918034-REL

• Forum: Arizona Office of Administrative Hearings

• Petitioner: Linda Curtin (“Complainant”), a homeowner and HOA member.

• Respondent: The Ridge at Diamante del Lago Homeowners Association, Inc. (“HOA”), represented by Community Manager Tracy Schofield.

• Administrative Law Judge: Diane Mihalsky

• Core Allegation: The HOA violated its governing documents and state law by failing to make association records available to a member upon request. Specifically, the petitioner sought a receipt and contractor details for a cinderblock wall built at the community clubhouse.

II. Governing Rules and Statutes

The case centered on the interpretation and enforcement of the HOA’s internal rules and a specific Arizona statute governing planned communities.

Rule/Statute

Key Provision

CC&R § 4.8

Requires the HOA Board to keep “true and correct records of account in accordance with generally accepted accounting principles” and to make such books and records available for inspection by all owners upon request during normal business hours.

A.R.S. § 33-1805(A)

Mandates that all financial and other association records be made “reasonably available for examination” by any member. The statute explicitly requires the association to fulfill a request for examination within ten business days. A similar ten-day deadline applies for providing copies of records.

The respondent did not claim any legal privilege under A.R.S. § 33-1805(B) that would permit it to withhold the requested documents.

III. Chronology of the Dispute

The conflict unfolded over several months, beginning with an informal inquiry and escalating to a formal legal petition.

• August 1, 2018: Petitioner Linda Curtin first emails Community Manager Tracy Schofield for a contractor recommendation.

• August 2 – September 11, 2018: In a subsequent email exchange, Ms. Curtin asks who built the garbage can walls at the clubhouse. Ms. Schofield provides the name “Roberto” but is unable to provide a contact number, stating that the Board’s Treasurer, Jim Mackiewicz, had arranged the work. The petitioner later characterized this exchange as “evasive.”

• September 12, 2018: Ms. Curtin sends a formal written letter requesting “a copy of the invoice submitted to The Ridge HOA” for the wall construction. This action officially started the ten-day clock under A.R.S. § 33-1805(A).

• September 24, 2018: Ms. Schofield responds, stating that she does not have the invoices at her office as records are retained “in the community.” She provides a printout of payments made to contractor Gualberto Castro, which includes a $1,000 check dated November 1, 2017, for “Block work – clubhouse.”

• November 5, 2018: Ms. Curtin requests that the invoice be brought to that day’s HOA board meeting. The document is not provided.

• November 28, 2018: After making an additional 15 phone calls regarding related meeting minutes without a satisfactory response, Ms. Curtin files a single-issue petition with the Arizona Department of Real Estate.

• December 10, 2018: The HOA files its answer, claiming the issue has been resolved. On the same day, Ms. Schofield emails the contractor’s invoice to Ms. Curtin. The invoice, from ValleyWide Custom Painting Inc. and dated November 2, 2017, details the $1,000 job.

• December 11, 2018: Ms. Curtin requests additional documents, including a copy of the cashed check and the Architectural Control Committee (ACC) application for the project. Ms. Schofield is reported to have stated that ACC approval was not applicable to work on common areas.

• Post-December 11, 2018: Ms. Schofield eventually provides a copy of the cancelled check for $1,000 made payable to Mr. Castro.

• February 20, 2019: An evidentiary hearing is held before the ALJ.

IV. Analysis of Evidence and Arguments

A. Petitioner’s Position

Ms. Curtin’s case was built on the initial failure to produce records and expanded to include broader suspicions about the HOA’s conduct.

• Primary Claim: The HOA violated state law by failing to fulfill her September 12, 2018 request for records within the ten-day statutory period.

• Suspicions about Documentation: The petitioner expressed dissatisfaction with the documents eventually provided. She opined that the November 2, 2017 receipt “appeared to have two different kinds of handwriting and might be a forgery.” She also pointed to the fact that the check for payment was dated one day before the invoice date.

• Ancillary Governance Concerns: Ms. Curtin raised several issues beyond the scope of her petition, including:

◦ The contractor, Mr. Castro, was not licensed as required by the Registrar of Contractors.

◦ The Board meeting minutes did not show authorization for the $1,000 expenditure.

◦ The HOA’s ACC approval process was not followed for the wall.

◦ A separate, unrelated $125,000 pool remodel project was approved improperly (this was refuted by Ms. Schofield’s testimony that it required a membership vote).

B. Respondent’s Position

The HOA, through Ms. Schofield, acknowledged the delay but argued it had ultimately complied and faced logistical constraints.

• Eventual Compliance: The HOA’s primary defense was that it eventually provided all the documents in its possession related to the expenditure, thereby resolving the complaint.

• Logistical Challenges: Ms. Schofield testified that she is an off-site community manager for numerous associations and does not keep records in her office. She stated that the HOA’s records are stored “in the community” at a separate depository.

• Commitment to Future Compliance: Ms. Schofield testified that for any future requests, she would schedule a time for the petitioner to review records at the depository within the ten-day window.

• Communication: Ms. Schofield maintained that she “communicated with Petitioner on every issue” and provided what information she had available.

V. Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was narrowly focused on the statutory violation, setting aside the petitioner’s other grievances.

A. Conclusions of Law

1. Violation Confirmed: The judge concluded that the petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). The HOA “acknowledged that it did not provide the documents or provide access to Petitioner to view the documents within ten days of Petitioner’s September 12, 2018 request.”

2. Scope of Relief Limited: The ALJ determined that the statute only requires that records be kept and made available in a timely manner. The law “has not authorized the Department… that HOAs produce records that satisfy all of a members’ stated concerns.”

3. Ancillary Claims Dismissed: The judge explicitly rejected the petitioner’s broader concerns, stating: “Petitioner’s concern with ‘transparency’ and dissatisfaction and suspicions about the records that were eventually provided do not entitle her to any additional relief in this forum.” The forgery claim was dismissed for lack of evidence, as Ms. Curtin did not present the opinion of a handwriting expert. The issues related to contractor licensing and internal HOA procedures were deemed outside the jurisdiction of the hearing for an HOA petition.

B. Recommended Order

Based on the findings, the ALJ issued a two-part order:

1. Petition Granted: The petition was granted on the grounds that Ms. Curtin had proven the HOA violated A.R.S. § 33-1805(A).

2. Reimbursement of Filing Fee: The HOA was ordered to reimburse the petitioner the $500.00 she paid to file the single-issue petition.

The order, issued on March 5, 2019, was declared binding on both parties unless a request for rehearing was filed within 30 days.

N. Wayne Dwight, Jr. vs.

Posted on January 29, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918027-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-01-29
Administrative Law Judge	Diane Mihalsky
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	N. Wayne Dwight, Jr.	Counsel	—
Respondent	Whisper Mountain Homeowners Association	Counsel	Troy B. Stratman, Esq.

Alleged Violations

CC&Rs §§ 3.2 and 7.7

Outcome Summary

The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.

Key Issues & Findings

Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.

Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.

Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(D)
• 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)

Analytics Highlights

Topics: HOA, ARC, CC&Rs, Board Authority, Architectural Review

Additional Citations:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(D)
• 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)

Audio Overview

Decision Documents

19F-H1918027-REL Decision – 685758.pdf

Uploaded 2025-10-08T07:07:54 (194.8 KB)

Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA

Executive Summary

This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.

The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.

Case Overview

Entity

Petitioner

N. Wayne Dwight, Jr. (Homeowner and former ARC member)

Respondent

Whisper Mountain Homeowners Association (HOA)

Adjudicator

Administrative Law Judge Diane Mihalsky

Case Number

19F-H1918027-REL

Hearing Date

January 14, 2019

Decision Date

January 29, 2019

Core Allegation

The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:

1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.

2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.

This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.

Key Factual Background & Timeline

• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.

• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.

• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.

• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.

• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”

• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.

• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.

• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.

• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.

• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.

• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.

Central Arguments Presented

Petitioner’s Position (N. Wayne Dwight, Jr.)

• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.

• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.

• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.

• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.

• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.

• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”

Respondent’s Position (Whisper Mountain HOA)

• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.

• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.

• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.

• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.

• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.

Administrative Law Judge’s Analysis and Conclusions

Interpretation of Governing Documents

The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.

• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”

• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”

On the Board’s Authority

The ALJ affirmed the HOA’s authority to manage the ARC as it did.

• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.

• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”

• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”

On the Alleged Violations

Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.

• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.

• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.

Final Order and Implications

Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.

Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.

N. Wayne Dwight, Jr. vs.

Posted on January 29, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918027-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-01-29
Administrative Law Judge	Diane Mihalsky
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	N. Wayne Dwight, Jr.	Counsel	—
Respondent	Whisper Mountain Homeowners Association	Counsel	Troy B. Stratman, Esq.

Alleged Violations

CC&Rs §§ 3.2 and 7.7

Outcome Summary

The Administrative Law Judge denied the petition, finding that the HOA Board had the authority under the CC&Rs and related documents to remove non-Board ARC members and appoint itself to perform the functions of the ARC, thus validating its approval of the homeowner's detached garage application.

Why this result: The Petitioner failed to establish by a preponderance of the evidence that the Respondent violated CC&Rs §§ 3.2 or 7.7. The Board, having assumed the developer's rights, was authorized to remove and appoint ARC members.

Key Issues & Findings

Alleged violation of CC&Rs regarding ARC dissolution and architectural approval authority.

Petitioner alleged that the HOA Board violated CC&Rs §§ 3.2 and 7.7 by dissolving the ARC and then acting as the ARC to approve a modification (detached garage) for a homeowner.

Orders: Petitioner's petition was denied because he failed to establish that CC&Rs §§ 3.2 or 7.7 prohibited the Respondent HOA from replacing non-Board ARC members, appointing its own members to act as the ARC, or approving the detached garage application.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(D)
• 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)

Analytics Highlights

Topics: HOA, ARC, CC&Rs, Board Authority, Architectural Review

Additional Citations:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(D)
• 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)

Audio Overview

Decision Documents

19F-H1918027-REL Decision – 685758.pdf

Uploaded 2025-10-09T03:33:43 (194.8 KB)

Administrative Law Judge Decision Briefing: Dwight vs. Whisper Mountain HOA

Executive Summary

This document summarizes the Administrative Law Judge (ALJ) decision in case number 19F-H1918027-REL, concerning a dispute between homeowner N. Wayne Dwight, Jr. (“Petitioner”) and the Whisper Mountain Homeowners Association (“Respondent”). The Petitioner alleged that the HOA Board violated the community’s Covenants, Conditions, and Restrictions (CC&Rs) by suspending the Architectural Review Committee (ARC) and subsequently approving a homeowner’s construction application.

The ALJ denied the petition in its entirety, finding that the HOA Board acted within its authority. The decision established that upon the departure of the original developer (the “Declarant”), the Board inherited the Declarant’s full rights and responsibilities, including the power to both appoint and remove members of the ARC. The Judge explicitly rejected the Petitioner’s argument that ARC members held lifetime appointments, deeming such an interpretation contrary to the democratic principles of HOA governance. Consequently, the Board’s decision to remove the non-Board ARC members and appoint itself to serve as the ARC was ruled a valid exercise of its powers, and its subsequent approval of the construction application was not a violation of the CC&Rs.

Case Overview

Entity

Petitioner

N. Wayne Dwight, Jr. (Homeowner and former ARC member)

Respondent

Whisper Mountain Homeowners Association (HOA)

Adjudicator

Administrative Law Judge Diane Mihalsky

Case Number

19F-H1918027-REL

Hearing Date

January 14, 2019

Decision Date

January 29, 2019

Core Allegation

The Petitioner alleged that the Respondent’s Board violated two sections of the CC&Rs:

1. § 7.7 (Improvements and Alterations): By approving a homeowner’s application to build a detached garage on September 19, 2018, without the approval of a properly constituted ARC.

2. § 3.2 (Appeal): By creating a situation where the body making an architectural decision (the Board acting as the ARC) is the same body that would hear an appeal of that decision, rendering the appeal process meaningless.

This was based on the Petitioner’s central claim that the Board’s action on August 6, 2018, to “dissolve” or “suspend” the ARC was a violation of the governing documents.

Key Factual Background & Timeline

• Prior to 2015: The developer, VIP Homes (“Declarant”), establishes the ARC as required by the CC&Rs.

• 2015: The Declarant turns over control of the HOA to the resident-elected Board of Directors.

• March 15, 2016: The Board adopts an ARC Charter, which explicitly states: “The right to appoint and remove all appointed [ARC] members at any time is hereby vested solely in the Board.” The Petitioner is appointed as one of three non-Board members to the ARC.

• 2017 or 2018: A proposed amendment to the CC&Rs to formally replace references to “Declarant” with “Board” or “Association” is not adopted by the general membership.

• July 17, 2018: The ARC meets to consider a detached garage application from homeowners Mark and Connie Wells. The meeting is contentious, with the Petitioner expressing doubts about the ARC’s authority to grant a variance from city setback requirements. The meeting adjourns abruptly after the applicant allegedly “verbally threatened the committee.”

• August 6, 2018: The HOA Board meets and passes a motion “to suspend the ARC committee for 60 days until guidelines/expectations are clarified.” The motion states that in the interim, the Board will review and approve all ARC submissions.

• August 24, 2018: The Board sends a letter to the non-Board ARC members, including the Petitioner, informing them of the 60-day suspension.

• September 17, 2018: The Board meets and approves a revised application from the Wells, which now aligns with City of Mesa code.

• September 19, 2018: The Board, formally acting as the ARC, reviews and approves the Wells’ revised application.

• October 22, 2018: The Petitioner files his complaint with the Arizona Department of Real Estate.

• November 19, 2018: The Board adopts a “Resolution Regarding the ARC” to clarify its position. The resolution states the Board had “(i) temporarily removed the current members of the [ARC] (via a suspension) and (ii) chose to act and serve as the current [ARC].” It also formally ratifies the approval of the Wells’ garage.

Central Arguments Presented

Petitioner’s Position (N. Wayne Dwight, Jr.)

• Limited Board Authority: The CC&Rs (§ 3.4) grant the Declarant the “sole right to appoint and remove” ARC members. After the Declarant’s departure, this section states that members “shall be appointed by the Board.” The Petitioner argued this only conferred the power to appoint, not to remove.

• Failed Amendment: The failure of the membership to amend the CC&Rs to explicitly grant the Board the Declarant’s powers proves that the Board does not possess the power of removal.

• Lifetime Appointments: The Petitioner argued that once appointed, ARC members could only be removed for specific cause (e.g., moving out of the community, incapacitation) and were otherwise entitled to serve for life.

• Improper ARC Suspension: The Board’s action to suspend the committee was a violation of the CC&Rs, as the Board lacked the authority to do so.

• Invalid Approval: Because the ARC was improperly suspended, the Board’s subsequent approval of the Wells’ application violated § 7.7, which requires ARC approval for all alterations.

• Meaningless Appeals: If the Board can act as the ARC, the appeal process outlined in § 3.2, which allows a homeowner to appeal an ARC decision to the Board, becomes an “exercise in futility.”

Respondent’s Position (Whisper Mountain HOA)

• Inherited Powers: Upon the Declarant’s departure, the Board assumed all of its rights and responsibilities under the CC&Rs, including the power to both appoint and remove ARC members.

• Authority from ARC Charter: The ARC Charter, adopted in 2016, explicitly grants the Board the sole right to remove ARC members at any time.

• Intent of the Board: The Board’s intent was not to abolish the ARC, but to address concerns about the committee’s conduct, including its “way of questioning applicants” and a need for more civility, fairness, and consistency.

• Clarification of “Suspension”: The use of the word “suspend” in communications by the management company (Mariposa Group) was “unfortunate and inaccurate.” The Board’s true action, clarified in its November 19 resolution, was to remove the non-Board members and appoint its own members to serve as the ARC.

• Valid Approval: The Board was legitimately acting as the ARC when it approved the Wells’ application; therefore, § 7.7 was not violated.

Administrative Law Judge’s Analysis and Conclusions

Interpretation of Governing Documents

The ALJ concluded that restrictive covenants must be construed as a whole and interpreted to give effect to the intent of the parties. The Judge found the Petitioner’s interpretation of the CC&Rs to be unpersuasive and ultimately harmful to the community.

• The Judge stated that the Petitioner’s interpretation “elevates non-elected members of ARC above elected Board members, abrogates any community control over ARC, and does not serve the underlying purposes of the CC&Rs.”

• This “unelected lifetime appointment” concept was found to be contrary to the “democratic principles underlying HOA law in Arizona.”

On the Board’s Authority

The ALJ affirmed the HOA’s authority to manage the ARC as it did.

• Assumption of Powers: The decision concludes that “When Declarant turned Respondent HOA over to its Board, the Board assumed all of Declarant’s rights and responsibilities under the CC&Rs and related documents.” This included the power to remove ARC members.

• ARC Charter: The Judge noted that the ARC Charter also “expressly provided that the Board had the power to remove as well as to appoint members of the ARC.”

• Legitimacy of Actions: The Board was found to have acted within its authority in August 2018 when it “removed the three non-Board members of the ARC and appointed itself to perform the functions of the ARC.”

On the Alleged Violations

Based on the finding that the Board acted within its authority, the ALJ concluded that no violations occurred.

• Conclusion on CC&R § 7.7 (ARC Approval): The petition failed on this point because the Board was legitimately acting as the ARC when it approved the Wells’ application in September 2018.

• Conclusion on CC&R § 3.2 (Appeals): The petition failed on this point because the CC&Rs do not prohibit Board members from acting as the ARC. While acknowledging that appealing a decision to the same body “may be an exercise in futility,” the Judge noted that under the CC&Rs, the Board is not required to hear appeals in any event.

Final Order and Implications

Order: The petition filed by N. Wayne Dwight, Jr. was denied. The Judge found he had not established that the HOA violated CC&Rs §§ 3.2 or 7.7.

Implications: This decision establishes a strong precedent for interpreting HOA governing documents in a manner that favors functional, democratic governance over literal interpretations that could lead to impractical or absurd outcomes. It affirms that an HOA Board generally inherits the full operational powers of the original developer unless explicitly restricted, and that a Board can act to reform or reconstitute committees to ensure they serve the community’s best interests.

Patricia Wiercinski vs. Long Meadow Ranch East Property Owners

Posted on January 22, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918028-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-01
Administrative Law Judge	Diane Mihalsky
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Patricia Wiercinski	Counsel	—
Respondent	Long Meadow Ranch East Property Owners Association, Inc.	Counsel	Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge dismissed the petition upon rehearing, holding that the email chain discussing an incident involving the Petitioner's husband was an informal communication among Board members, not an official record of the association under A.R.S. § 33-1805(A), since the Board never took any formal action on the matter. Therefore, the HOA was not required to produce an un-redacted copy.

Why this result: The Petitioner failed to meet the burden of proof that the email string constituted 'financial and other records of the association' which Respondent was required to provide.

Key Issues & Findings

Failure to produce association records (un-redacted email string) upon member request

Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to produce an un-redacted copy of an email chain among Board members concerning an incident where Petitioner's husband allegedly harassed potential buyers, arguing the email constituted an official association record.

Orders: Petition denied and dismissed. The HOA did not violate A.R.S. § 33-1805(A) as the email string was determined not to be an official record of the association.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1805(A)
• A.R.S. § 33-1804(E)(4)

Analytics Highlights

Topics: HOA records, Statutory violation, Document production, Informal communication, Board quorum, A.R.S. § 33-1805, Rehearing

Additional Citations:

• A.R.S. § 33-1805(A)
• A.R.S. § 33-1804(E)(4)
• A.R.S. § 32-2199(B)
• 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)

Audio Overview

Decision Documents

19F-H1918028-REL Decision – 684134.pdf

Uploaded 2025-10-08T07:07:58 (149.9 KB)

Briefing Document: Wiercinski v. Long Meadow Ranch East Property Owners Association

Executive Summary

This document synthesizes the findings, arguments, and outcomes from two administrative hearings concerning a petition filed by homeowner Patricia Wiercinski against the Long Meadow Ranch East Property Owners Association (the “HOA”). The core of the dispute is the HOA’s alleged failure to produce records related to a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly engaged in belligerent and threatening behavior toward potential buyers of a neighboring property, causing the prospective sale to collapse.

Across an initial hearing and a subsequent rehearing, Administrative Law Judge Diane Mihalsky consistently ruled in favor of the HOA. The central finding was that the key evidence—an email chain discussing the incident among HOA board members—did not constitute an official “record of the association” under Arizona statute A.R.S. § 33-1805. The communications were deemed informal discussions among neighbors that never resulted in official board business or action. Consequently, the HOA was under no legal obligation to produce these private emails or to provide an un-redacted version to the petitioner. The judge also found the HOA’s decision to redact the names of the potential buyers and their agent was reasonable, given testimony regarding Mr. Coates’ alleged history of bullying and intimidation.

1. Case Overview

The matter involves a single-issue petition filed by Patricia Wiercinski alleging the Long Meadow Ranch East Property Owners Association, Inc. violated Arizona law by refusing to produce documents concerning its response to a specific incident involving her husband.

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

Violation of A.R.S. § 33-1805 (Access to association financial and other records)

2. The Incident of June 19, 2017

On June 19, 2017, potential buyers, along with their architect and son, visited a vacant lot for sale on Puntenney Road, across the street from the residence of Patricia Wiercinski and Wayne Coates.

• The Confrontation: An email from the prospective buyers described an encounter with an “elderly man” (identified as Wayne Coates) who “came out of a home to the west and began to yell and scream.”

• Alleged Behavior: Mr. Coates’ actions were characterized as “belligerent and cursing,” “verbally abusive,” and “extremely confrontational.” He allegedly told the visitors that “nothing was for sale around here” and that they “needed to leave immediately.”

• Immediate Consequence: The incident directly resulted in the termination of the potential sale. In their email, the buyers stated: “would we want to live next to this type of behavior of [a] neighbor? The answer is no… due to the volatile potential of this man, we have decided at this point to remove it from our list.” They further stated they would avoid any property that required them to “drive past or have the chance of contact with this individual.”

3. The Central Evidence: The Email Correspondence

The focal point of the legal dispute is an email chain dated June 19-20, 2017, that was voluntarily produced by the HOA after the petition was filed. The emails reveal the immediate fallout from the incident and the initial reactions of the property owner and HOA board members.

• John Allen (Property Owner): After being informed by his realtor, Mr. Allen shared the complaint with the HOA Board of Directors (BOD), stating, “an owner should not be allowed to interfere with a potential sale of another owner’s property.” He indicated he would “employ legal action if necessary.”

• Gregg Arthur (HOA Director and Realtor): In an email to the Board, Mr. Arthur expressed significant concern, framing the situation as being “as bad as it gets” in the real estate world. He wrote, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all)… action needs to be taken and quickly to prevent this from happening again.”

• Joe Zielinski (HOA Director): Mr. Zielinski’s email suggested potential legal consequences for Mr. Coates, noting his “arrest record and prison term and criminal history.” He stated that the Yavapai County Sheriff’s Office (YCSO) “may file charges against Wayne for disorderly conduct/harassment.” He concluded, “I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”

4. Legal Proceedings and Evolving Arguments

The case was adjudicated over two separate hearings, during which the Petitioner’s legal theory shifted significantly.

4.1. Initial Hearing (January 10, 2019)

• Petitioner’s Argument: Ms. Wiercinski alleged that the HOA violated A.R.S. § 33-1805 by failing to produce official documents showing its deliberations and decisions regarding the incident. She argued that because a quorum of the board was included in the email discussion, they were required to formally address the matter and produce a record of their decision, even if the decision was to take no action. She also noted the failure to produce a map referenced in one of the emails.

• Respondent’s Position: The HOA contended it had not violated any statute. Its representatives testified that the email chain was an informal communication among board members on their personal servers, not an official HOA record. They stated the Board never formally discussed, voted on, or took any action regarding the incident, as it did not constitute a violation of any governing documents the HOA was empowered to enforce.

• Outcome: The petition was denied. The Administrative Law Judge (ALJ) found that the Petitioner failed to establish that any official documents regarding the incident existed that the HOA had failed to produce.

4.2. Rehearing (April 22, 2019)

• Basis for Rehearing: The rehearing was granted after Ms. Wiercinski alleged misconduct by the judge.

• Petitioner’s Shift in Argument: Ms. Wiercinski changed her theory of the case. She no longer argued that a formal decision was required. Instead, she contended that the email string itself was an official record of the association. Therefore, she argued, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted version, asserting she had a right to know the identity of her husband’s accusers.

• Respondent’s Position: The HOA reiterated that the emails were private communications and not official records. The HOA President, Mike Olson, testified that the names of the potential purchasers and their real estate agent were redacted because “Mr. Coates had a history of bullying and intimidating people.” The Community Manager, Kathy Andrews, affirmed that the incident was never entered into the HOA’s official records because the board took no action and viewed it as a personal dispute outside its authority.

• Outcome: The petition was dismissed. The ALJ reaffirmed that the email string was not a “record of the association” and, therefore, the statute did not require the HOA to provide an un-redacted version.

5. Key Findings and Conclusions of the Administrative Law Judge

Across both decisions, Judge Mihalsky’s conclusions of law were consistent and decisive.

• Informal Discussion vs. Official Business: The judge ruled that the “mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business.”

• Status of the Email Chain: The emails were determined to be informal communications, not “financial and other records of the association” subject to A.R.S. § 33-1805. As such, the HOA was not legally obligated to produce them.

• No Violation of Statute: Because the Petitioner did not establish that any official documents existed regarding the incident, her petition was denied. In the rehearing, the petition was dismissed because the email string was not an official record requiring un-redacted disclosure.

• Reasonableness of Redactions: The judge commented that the HOA president’s testimony—that he redacted the names out of fear that Mr. Coates would harass the individuals involved—”does not appear unreasonable.”

• Burden of Proof: In both hearings, the Petitioner failed to meet her burden of proof to establish by a preponderance of the evidence that the Respondent had violated the statute.

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

Petitioner; homeowner who filed the petition against the HOA for withholding records.

Wayne Coates

Petitioner’s Husband; central figure in the June 19, 2017 incident. Alleged to have a history of aggressive behavior.

Mike Olson

HOA President; testified that emails were informal and names were redacted to protect individuals from Mr. Coates.

Gregg Arthur

HOA Director / Realtor; warned that Mr. Coates’ actions destroyed a sale and would have a “chilling effect.”

Kathy Andrews

Community Manager (HOAMCO); testified that no official records of the incident exist in the HOA’s archives.

John Allen

Property Owner; was attempting to sell the lot and reported the incident to the HOA.

Joe Zielinski

HOA Director; mentioned Mr. Coates’ criminal history in an email and suggested his disruptive behavior would continue.

Diane Mihalsky

Administrative Law Judge; presided over both hearings and issued decisions dismissing the petition.

Patricia Wiercinski vs. Long Meadow Ranch East Property Owners

Posted on January 22, 2019 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918028-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-01
Administrative Law Judge	Diane Mihalsky
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Patricia Wiercinski	Counsel	—
Respondent	Long Meadow Ranch East Property Owners Association, Inc.	Counsel	Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge dismissed the petition upon rehearing, holding that the email chain discussing an incident involving the Petitioner's husband was an informal communication among Board members, not an official record of the association under A.R.S. § 33-1805(A), since the Board never took any formal action on the matter. Therefore, the HOA was not required to produce an un-redacted copy.

Why this result: The Petitioner failed to meet the burden of proof that the email string constituted 'financial and other records of the association' which Respondent was required to provide.

Key Issues & Findings

Failure to produce association records (un-redacted email string) upon member request

Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to produce an un-redacted copy of an email chain among Board members concerning an incident where Petitioner's husband allegedly harassed potential buyers, arguing the email constituted an official association record.

Orders: Petition denied and dismissed. The HOA did not violate A.R.S. § 33-1805(A) as the email string was determined not to be an official record of the association.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1805(A)
• A.R.S. § 33-1804(E)(4)

Analytics Highlights

Topics: HOA records, Statutory violation, Document production, Informal communication, Board quorum, A.R.S. § 33-1805, Rehearing

Additional Citations:

• A.R.S. § 33-1805(A)
• A.R.S. § 33-1804(E)(4)
• A.R.S. § 32-2199(B)
• 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)

Audio Overview

Decision Documents

19F-H1918028-REL Decision – 684134.pdf

Uploaded 2025-10-09T03:33:45 (149.9 KB)

Briefing Document: Wiercinski v. Long Meadow Ranch East Property Owners Association

Executive Summary

This document synthesizes the findings, arguments, and outcomes from two administrative hearings concerning a petition filed by homeowner Patricia Wiercinski against the Long Meadow Ranch East Property Owners Association (the “HOA”). The core of the dispute is the HOA’s alleged failure to produce records related to a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly engaged in belligerent and threatening behavior toward potential buyers of a neighboring property, causing the prospective sale to collapse.

Across an initial hearing and a subsequent rehearing, Administrative Law Judge Diane Mihalsky consistently ruled in favor of the HOA. The central finding was that the key evidence—an email chain discussing the incident among HOA board members—did not constitute an official “record of the association” under Arizona statute A.R.S. § 33-1805. The communications were deemed informal discussions among neighbors that never resulted in official board business or action. Consequently, the HOA was under no legal obligation to produce these private emails or to provide an un-redacted version to the petitioner. The judge also found the HOA’s decision to redact the names of the potential buyers and their agent was reasonable, given testimony regarding Mr. Coates’ alleged history of bullying and intimidation.

1. Case Overview

The matter involves a single-issue petition filed by Patricia Wiercinski alleging the Long Meadow Ranch East Property Owners Association, Inc. violated Arizona law by refusing to produce documents concerning its response to a specific incident involving her husband.

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

Violation of A.R.S. § 33-1805 (Access to association financial and other records)

2. The Incident of June 19, 2017

On June 19, 2017, potential buyers, along with their architect and son, visited a vacant lot for sale on Puntenney Road, across the street from the residence of Patricia Wiercinski and Wayne Coates.

• The Confrontation: An email from the prospective buyers described an encounter with an “elderly man” (identified as Wayne Coates) who “came out of a home to the west and began to yell and scream.”

• Alleged Behavior: Mr. Coates’ actions were characterized as “belligerent and cursing,” “verbally abusive,” and “extremely confrontational.” He allegedly told the visitors that “nothing was for sale around here” and that they “needed to leave immediately.”

• Immediate Consequence: The incident directly resulted in the termination of the potential sale. In their email, the buyers stated: “would we want to live next to this type of behavior of [a] neighbor? The answer is no… due to the volatile potential of this man, we have decided at this point to remove it from our list.” They further stated they would avoid any property that required them to “drive past or have the chance of contact with this individual.”

3. The Central Evidence: The Email Correspondence

The focal point of the legal dispute is an email chain dated June 19-20, 2017, that was voluntarily produced by the HOA after the petition was filed. The emails reveal the immediate fallout from the incident and the initial reactions of the property owner and HOA board members.

• John Allen (Property Owner): After being informed by his realtor, Mr. Allen shared the complaint with the HOA Board of Directors (BOD), stating, “an owner should not be allowed to interfere with a potential sale of another owner’s property.” He indicated he would “employ legal action if necessary.”

• Gregg Arthur (HOA Director and Realtor): In an email to the Board, Mr. Arthur expressed significant concern, framing the situation as being “as bad as it gets” in the real estate world. He wrote, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all)… action needs to be taken and quickly to prevent this from happening again.”

• Joe Zielinski (HOA Director): Mr. Zielinski’s email suggested potential legal consequences for Mr. Coates, noting his “arrest record and prison term and criminal history.” He stated that the Yavapai County Sheriff’s Office (YCSO) “may file charges against Wayne for disorderly conduct/harassment.” He concluded, “I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”

4. Legal Proceedings and Evolving Arguments

The case was adjudicated over two separate hearings, during which the Petitioner’s legal theory shifted significantly.

4.1. Initial Hearing (January 10, 2019)

• Petitioner’s Argument: Ms. Wiercinski alleged that the HOA violated A.R.S. § 33-1805 by failing to produce official documents showing its deliberations and decisions regarding the incident. She argued that because a quorum of the board was included in the email discussion, they were required to formally address the matter and produce a record of their decision, even if the decision was to take no action. She also noted the failure to produce a map referenced in one of the emails.

• Respondent’s Position: The HOA contended it had not violated any statute. Its representatives testified that the email chain was an informal communication among board members on their personal servers, not an official HOA record. They stated the Board never formally discussed, voted on, or took any action regarding the incident, as it did not constitute a violation of any governing documents the HOA was empowered to enforce.

• Outcome: The petition was denied. The Administrative Law Judge (ALJ) found that the Petitioner failed to establish that any official documents regarding the incident existed that the HOA had failed to produce.

4.2. Rehearing (April 22, 2019)

• Basis for Rehearing: The rehearing was granted after Ms. Wiercinski alleged misconduct by the judge.

• Petitioner’s Shift in Argument: Ms. Wiercinski changed her theory of the case. She no longer argued that a formal decision was required. Instead, she contended that the email string itself was an official record of the association. Therefore, she argued, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted version, asserting she had a right to know the identity of her husband’s accusers.

• Respondent’s Position: The HOA reiterated that the emails were private communications and not official records. The HOA President, Mike Olson, testified that the names of the potential purchasers and their real estate agent were redacted because “Mr. Coates had a history of bullying and intimidating people.” The Community Manager, Kathy Andrews, affirmed that the incident was never entered into the HOA’s official records because the board took no action and viewed it as a personal dispute outside its authority.

• Outcome: The petition was dismissed. The ALJ reaffirmed that the email string was not a “record of the association” and, therefore, the statute did not require the HOA to provide an un-redacted version.

5. Key Findings and Conclusions of the Administrative Law Judge

Across both decisions, Judge Mihalsky’s conclusions of law were consistent and decisive.

• Informal Discussion vs. Official Business: The judge ruled that the “mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business.”

• Status of the Email Chain: The emails were determined to be informal communications, not “financial and other records of the association” subject to A.R.S. § 33-1805. As such, the HOA was not legally obligated to produce them.

• No Violation of Statute: Because the Petitioner did not establish that any official documents existed regarding the incident, her petition was denied. In the rehearing, the petition was dismissed because the email string was not an official record requiring un-redacted disclosure.

• Reasonableness of Redactions: The judge commented that the HOA president’s testimony—that he redacted the names out of fear that Mr. Coates would harass the individuals involved—”does not appear unreasonable.”

• Burden of Proof: In both hearings, the Petitioner failed to meet her burden of proof to establish by a preponderance of the evidence that the Respondent had violated the statute.

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

Petitioner; homeowner who filed the petition against the HOA for withholding records.

Wayne Coates

Petitioner’s Husband; central figure in the June 19, 2017 incident. Alleged to have a history of aggressive behavior.

Mike Olson

HOA President; testified that emails were informal and names were redacted to protect individuals from Mr. Coates.

Gregg Arthur

HOA Director / Realtor; warned that Mr. Coates’ actions destroyed a sale and would have a “chilling effect.”

Kathy Andrews

Community Manager (HOAMCO); testified that no official records of the incident exist in the HOA’s archives.

John Allen

Property Owner; was attempting to sell the lot and reported the incident to the HOA.

Joe Zielinski

HOA Director; mentioned Mr. Coates’ criminal history in an email and suggested his disruptive behavior would continue.

Diane Mihalsky

Administrative Law Judge; presided over both hearings and issued decisions dismissing the petition.

John A Sellers vs. Rancho Madera Condominium Association

Posted on December 26, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918010-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John A Sellers	Counsel	—
Respondent	Rancho Madera Condominium Association	Counsel	Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium

Additional Citations:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2025-10-08T07:07:07 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2025-10-08T07:07:07 (129.5 KB)

John A Sellers vs. Rancho Madera Condominium Association

Posted on December 26, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	19F-H1918010-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2019-05-10
Administrative Law Judge	Tammy L. Eigenheer
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John A Sellers	Counsel	—
Respondent	Rancho Madera Condominium Association	Counsel	Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium

Additional Citations:

• A.R.S. § 32-2199.01
• Title 33, Chapter 9
• A.A.C. R2-19-119(A) and (B)(1)
• Vazanno v. Superior Court
• A.A.C. R2-19-119(B)(2)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
• BLACK’S LAW DICTIONARY
• Powell v. Washburn
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2025-10-09T03:33:27 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2025-10-09T03:33:27 (129.5 KB)