Tag Archives: CC&R

Don France v. Mesa East Property Owners Association

Posted on by

Case Summary

Case ID 20F-H2020056-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-21
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Don France Counsel —
Respondent Mesa East Property Owners Association Counsel B. Austin Bailio

Alleged Violations

CC&R section 2.7

Outcome Summary

The petition was dismissed because the Petitioner failed to demonstrate a violation by the Association, conceding that the Association was not in violation of the cited CC&R section.

Why this result: Petitioner acknowledged the Association was not in violation of CC&R section 2.7, the single issue raised in the petition.

Key Issues & Findings

Alleged violation of CC&R section 2.7 by the Association (later asserted as estoppel regarding enforcement)

Petitioner alleged the Respondent Association violated CC&R section 2.7. At the hearing, Petitioner acknowledged the Association was not actually in violation of section 2.7, but argued the Association was estopped from enforcing the provision requiring a six-foot gate for RV storage. Petitioner sought invalidation of outstanding fines.

Orders: Don France's petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: CC&R, RV storage, Estoppel, Fines
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 41-1092.07(F)(6)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Audio Overview

Decision Documents

20F-H2020056-REL Decision – 823714.pdf

Uploaded 2025-10-09T03:35:18 (96.1 KB)

Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA did not violate A.R.S. § 33-1808 because its guideline limiting residents to one flagpole (which permits flying both the US flag and military flags) constitutes a reasonable rule under the statute. Furthermore, the HOA did not violate the appeal process outlined in CC&R § 7.9.

Why this result: Petitioner failed to establish that Respondent’s Board violated A.R.S. § 33-1808 or CC&R § 7. The board properly denied the application because the existing Architectural Guidelines allow her to fly both the American and Marine flags from a single flagpole, making her request for two poles an aesthetic choice rather than a necessity based on statutory right.

Key Issues & Findings

Refusal to allow installation of two flagpoles to display US and Marine Corps flags

Petitioner claimed Respondent violated statute (A.R.S. § 33-1808) and CC&Rs by denying her request to install two flagpoles for aesthetic reasons, arguing the denial effectively limited her right to display the flags and that the appeal process (CC&R § 7.9) was violated. The ALJ found the HOA's rule limiting flagpoles to one was a reasonable regulation under A.R.S. § 33-1808(B) because Petitioner could fly both flags on a single pole, and that the board complied with the appeal requirements of CC&R § 7.9.

Orders: Petitioner's petition is denied. The Board can properly find Petitioner in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA, Flag, Flagpole, Architectural Review, CC&R, Rehearing, Military Flag
Additional Citations:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2025-10-08T07:09:08 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2025-10-08T07:09:09 (163.3 KB)





Briefing Doc – 19F-H1919053-REL-RHG


Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and decision in the case of Joyce H. Monsanto (Petitioner) versus the Four Seasons at the Manor Homeowners Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the HOA’s denial of Ms. Monsanto’s request to install two flagpoles on her property, a decision she contested as a violation of state law and the community’s governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petition and ruled in favor of the HOA. The decision rested on three critical findings:

1. HOA Rules are Reasonable: The HOA’s Architectural Guideline limiting each property to a single flagpole is a “reasonable” regulation explicitly permitted under Arizona statute A.R.S. § 33-1808(B). The guidelines allow for two flags to be flown from a single pole, meaning the HOA did not prohibit the display of the flags themselves.

2. No Procedural Violation: The HOA Board complied with the 45-day decision period for appeals outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the Board rendered a decision at its November 8, 2018, meeting and that the subsequent posting of draft meeting minutes on December 4, 2018, constituted a sufficient written record within the required timeframe.

3. Dispute Driven by Aesthetics: The ALJ concluded that the core of the Petitioner’s case was not about patriotism or the HOA’s unreasonableness, but rather her personal preference. The decision states, “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons.” The ALJ found the testimony of the HOA’s president credible while deeming the Petitioner’s testimony that a decision was not made to be “incredible.”

I. Case Background and Timeline

The case centers on a single-issue petition filed on March 6, 2019, by Joyce H. Monsanto, a homeowner in the Four Seasons at the Manor community in Sun City, Arizona. Ms. Monsanto alleged that her HOA violated state law and its own CC&Rs by refusing to approve her application to affix two separate flagpoles to her house—one for the United States flag and one for the United States Marine Corps flag.

Ms. Monsanto’s family has a significant history of military service, including a husband who served 25 years in the Marines, one son with 25 years in the Marines, and another with 30 years in the Coast Guard.

Aug 31, 2018

Ms. Monsanto submits a Design Review Application to install two 6′ flagpoles on the exterior wall of her house.

Sep 22, 2018

The HOA’s Architectural Committee issues a written Notice of Disapproval, citing the Architectural Guidelines’ limit of one flagpole per lot.

Oct 1, 2018

Ms. Monsanto submits a written appeal to the HOA Board, arguing the denial was unreasonable and that the Board could grant a waiver.

Nov 8, 2018

The HOA Board holds a meeting where it states it considered the appeal. Testimony regarding the events of this meeting was a central point of contention in the case.

Dec 4, 2018

Draft minutes from the November 8 meeting are posted on the HOA website, stating the Board had rejected Ms. Monsanto’s request for a waiver for two flagpoles.

Mar 6, 2019

Ms. Monsanto files her petition with the Arizona Department of Real Estate.

May 30, 2019

An initial evidentiary hearing is held, with the ALJ finding that the Petitioner had not established a violation by the HOA.

Aug 22, 2019

The Commissioner of the Department of Real Estate grants Ms. Monsanto’s request for a rehearing.

Oct 21, 2019

A rehearing is held before the Office of Administrative Hearings.

Nov 18, 2019

The ALJ issues the final Amended Administrative Law Judge Decision, again finding in favor of the HOA.

II. Central Arguments and Evidence

Petitioner’s Position (Joyce H. Monsanto)

• Statutory and CC&R Violations: Argued the HOA’s denial violated A.R.S. § 33-1808 (governing flag display) and CC&R § 7.9 (the appeals process).

• Aesthetic and Practical Concerns: Acknowledged she could fly two flags from one pole but did not want to, stating it would block the view from her front window and was undesirable for “aesthetic reasons.”

• Failure to Follow Procedure: Claimed the Board violated CC&R § 7.9 by failing to render a decision and issue a written notice directly to her within the 45-day period following her appeal. She argued this failure should have triggered the “deemed approval” clause of the CC&R.

• Insufficiency of Notice: Maintained that the draft meeting minutes posted on the HOA’s website were not a valid written denial because they were not sent directly to her, did not explicitly mention her “appeal,” and were not formally approved until April 2019.

• Inconsistent Enforcement: Alleged that the HOA’s denial was unreasonable because it did not uniformly enforce its Architectural Guidelines.

Respondent’s Position (Four Seasons HOA)

• Compliance with Law: Asserted that its one-flagpole rule is a “reasonable” regulation permitted by A.R.S. § 33-1808(B) and does not prohibit the display of flags.

• Consistent Enforcement: HOA President Tony Nunziato testified that the Board has never granted a waiver for the one-flagpole rule and that all of the other approximately 14 homes (out of 140) with flagpoles have only one.

• Adherence to Appeal Procedure: Mr. Nunziato testified that the Board consulted with the Architectural Committee, considered the appeal at the November 8, 2018 meeting, and verbally informed Ms. Monsanto of the denial at that time.

• Timely Written Record: Contended that the draft meeting minutes posted online on December 4, 2018—within the 45-day window—served as the required written record of the decision, satisfying the terms of CC&R § 7.9.

III. Relevant Statutes and Community Rules

A.R.S. § 33-1808 (Flag Display)

• Protection of Display: An HOA “shall not prohibit the outdoor front yard or backyard display” of the American flag or military flags.

• Authority to Regulate: An HOA “shall adopt reasonable rules and regulations regarding the placement and manner of display.” Crucially, the statute specifies that these rules “may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole… but shall not prohibit the installation of a flagpole.”

Four Seasons at the Manor Architectural Guidelines

• Original Rule (May 2016): “No flagpole shall be installed without the prior written approval of the Architectural Committee… and only one flagpole is permitted per Lot.” The maximum height was 12 feet.

• Amended Rule (November 8, 2018): The Board amended the guidelines, increasing the maximum pole height to 20 feet and adding rules for illumination at night. However, “The Board did not change the limit of one flagpole per lot.”

Four Seasons at the Manor CC&Rs

• CC&R § 7.8 (Board Approval for Initial Application): Requires the Board to “inform the submitting party of the final decision” and provide the owner with a “written response” within 60 days.

• CC&R § 7.9 (Appeals): In the event of an appeal of a disapproval, it requires the Board to “consult with the Architectural Committee” and “render its written decision” within 45 days. It further states that “Failure of the Board to render a decision within said forth-five (45) day period shall be deemed approval of the submission.”

IV. Administrative Law Judge’s Decision and Rationale

The ALJ’s order denied the Petitioner’s petition, affirming the HOA’s right to enforce its one-flagpole rule. The legal conclusions underpinning this decision were definitive.

Key Legal Conclusions

1. Burden of Proof Not Met: The Petitioner bore the burden of proving that the HOA violated the CC&Rs by a “preponderance of the evidence.” The ALJ concluded she failed to meet this standard.

2. HOA Rule Is Reasonable and Legal: The one-flagpole guideline is a reasonable rule explicitly authorized under A.R.S. § 33-1808(B). Because the Petitioner could fly both flags from a single pole, the HOA was regulating the manner of display, not prohibiting it.

3. Credibility of Testimony: The ALJ found the testimony of HOA President Tony Nunziato—that the Board consulted the committee, made a decision, and verbally informed the Petitioner—to be “credible and supported by the minutes of the meeting.” Conversely, the Petitioner’s testimony that the Board did not make a decision was found to be “incredible.”

4. Interpretation of the Appeals Process (CC&R § 7.9): This was a pivotal point of the ruling.

◦ Decision Rendered: The ALJ determined the Board “orally reached a decision” at the November 8, 2018 meeting, thus “rendering a decision” as required.

◦ Written Record Created: The draft meeting minutes posted on December 4, 2018, constituted a “writing memorializing its decision” within the 45-day timeframe that began with the October 1, 2018 appeal.

◦ No Direct Notification Required for Appeals: The ALJ applied the “negative implication cannon of contract construction.” Because CC&R § 7.8 (for initial applications) explicitly requires a written response be provided to the owner, and CC&R § 7.9 (for appeals) does not contain this specific language, the latter rule only requires that a written decision be created, not necessarily delivered to the appellant.

5. “Deemed Approval” Clause Not Triggered: Because the Board rendered a decision and created a written record within the 45-day period, the Petitioner did not establish that her request should have been deemed approved.

The final order concluded that the HOA Board can properly find Ms. Monsanto in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.


Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The Administrative Law Judge denied the Petitioner's petition, finding that the HOA did not violate A.R.S. § 33-1808 because its guideline limiting residents to one flagpole (which permits flying both the US flag and military flags) constitutes a reasonable rule under the statute. Furthermore, the HOA did not violate the appeal process outlined in CC&R § 7.9.

Why this result: Petitioner failed to establish that Respondent’s Board violated A.R.S. § 33-1808 or CC&R § 7. The board properly denied the application because the existing Architectural Guidelines allow her to fly both the American and Marine flags from a single flagpole, making her request for two poles an aesthetic choice rather than a necessity based on statutory right.

Key Issues & Findings

Refusal to allow installation of two flagpoles to display US and Marine Corps flags

Petitioner claimed Respondent violated statute (A.R.S. § 33-1808) and CC&Rs by denying her request to install two flagpoles for aesthetic reasons, arguing the denial effectively limited her right to display the flags and that the appeal process (CC&R § 7.9) was violated. The ALJ found the HOA's rule limiting flagpoles to one was a reasonable regulation under A.R.S. § 33-1808(B) because Petitioner could fly both flags on a single pole, and that the board complied with the appeal requirements of CC&R § 7.9.

Orders: Petitioner's petition is denied. The Board can properly find Petitioner in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Analytics Highlights

Topics: HOA, Flag, Flagpole, Architectural Review, CC&R, Rehearing, Military Flag
Additional Citations:

  • A.R.S. § 33-1808
  • A.R.S. § 33-1803
  • CC&R § 7.9
  • 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)
  • A.R.S. § 41-1092.08(H)
  • A.R.S. § 12-904(A)

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2025-10-09T03:34:13 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2025-10-09T03:34:13 (163.3 KB)





Briefing Doc – 19F-H1919053-REL-RHG


Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and decision in the case of Joyce H. Monsanto (Petitioner) versus the Four Seasons at the Manor Homeowners Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings. The central dispute involved the HOA’s denial of Ms. Monsanto’s request to install two flagpoles on her property, a decision she contested as a violation of state law and the community’s governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petition and ruled in favor of the HOA. The decision rested on three critical findings:

1. HOA Rules are Reasonable: The HOA’s Architectural Guideline limiting each property to a single flagpole is a “reasonable” regulation explicitly permitted under Arizona statute A.R.S. § 33-1808(B). The guidelines allow for two flags to be flown from a single pole, meaning the HOA did not prohibit the display of the flags themselves.

2. No Procedural Violation: The HOA Board complied with the 45-day decision period for appeals outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ determined that the Board rendered a decision at its November 8, 2018, meeting and that the subsequent posting of draft meeting minutes on December 4, 2018, constituted a sufficient written record within the required timeframe.

3. Dispute Driven by Aesthetics: The ALJ concluded that the core of the Petitioner’s case was not about patriotism or the HOA’s unreasonableness, but rather her personal preference. The decision states, “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons.” The ALJ found the testimony of the HOA’s president credible while deeming the Petitioner’s testimony that a decision was not made to be “incredible.”

I. Case Background and Timeline

The case centers on a single-issue petition filed on March 6, 2019, by Joyce H. Monsanto, a homeowner in the Four Seasons at the Manor community in Sun City, Arizona. Ms. Monsanto alleged that her HOA violated state law and its own CC&Rs by refusing to approve her application to affix two separate flagpoles to her house—one for the United States flag and one for the United States Marine Corps flag.

Ms. Monsanto’s family has a significant history of military service, including a husband who served 25 years in the Marines, one son with 25 years in the Marines, and another with 30 years in the Coast Guard.

Aug 31, 2018

Ms. Monsanto submits a Design Review Application to install two 6′ flagpoles on the exterior wall of her house.

Sep 22, 2018

The HOA’s Architectural Committee issues a written Notice of Disapproval, citing the Architectural Guidelines’ limit of one flagpole per lot.

Oct 1, 2018

Ms. Monsanto submits a written appeal to the HOA Board, arguing the denial was unreasonable and that the Board could grant a waiver.

Nov 8, 2018

The HOA Board holds a meeting where it states it considered the appeal. Testimony regarding the events of this meeting was a central point of contention in the case.

Dec 4, 2018

Draft minutes from the November 8 meeting are posted on the HOA website, stating the Board had rejected Ms. Monsanto’s request for a waiver for two flagpoles.

Mar 6, 2019

Ms. Monsanto files her petition with the Arizona Department of Real Estate.

May 30, 2019

An initial evidentiary hearing is held, with the ALJ finding that the Petitioner had not established a violation by the HOA.

Aug 22, 2019

The Commissioner of the Department of Real Estate grants Ms. Monsanto’s request for a rehearing.

Oct 21, 2019

A rehearing is held before the Office of Administrative Hearings.

Nov 18, 2019

The ALJ issues the final Amended Administrative Law Judge Decision, again finding in favor of the HOA.

II. Central Arguments and Evidence

Petitioner’s Position (Joyce H. Monsanto)

• Statutory and CC&R Violations: Argued the HOA’s denial violated A.R.S. § 33-1808 (governing flag display) and CC&R § 7.9 (the appeals process).

• Aesthetic and Practical Concerns: Acknowledged she could fly two flags from one pole but did not want to, stating it would block the view from her front window and was undesirable for “aesthetic reasons.”

• Failure to Follow Procedure: Claimed the Board violated CC&R § 7.9 by failing to render a decision and issue a written notice directly to her within the 45-day period following her appeal. She argued this failure should have triggered the “deemed approval” clause of the CC&R.

• Insufficiency of Notice: Maintained that the draft meeting minutes posted on the HOA’s website were not a valid written denial because they were not sent directly to her, did not explicitly mention her “appeal,” and were not formally approved until April 2019.

• Inconsistent Enforcement: Alleged that the HOA’s denial was unreasonable because it did not uniformly enforce its Architectural Guidelines.

Respondent’s Position (Four Seasons HOA)

• Compliance with Law: Asserted that its one-flagpole rule is a “reasonable” regulation permitted by A.R.S. § 33-1808(B) and does not prohibit the display of flags.

• Consistent Enforcement: HOA President Tony Nunziato testified that the Board has never granted a waiver for the one-flagpole rule and that all of the other approximately 14 homes (out of 140) with flagpoles have only one.

• Adherence to Appeal Procedure: Mr. Nunziato testified that the Board consulted with the Architectural Committee, considered the appeal at the November 8, 2018 meeting, and verbally informed Ms. Monsanto of the denial at that time.

• Timely Written Record: Contended that the draft meeting minutes posted online on December 4, 2018—within the 45-day window—served as the required written record of the decision, satisfying the terms of CC&R § 7.9.

III. Relevant Statutes and Community Rules

A.R.S. § 33-1808 (Flag Display)

• Protection of Display: An HOA “shall not prohibit the outdoor front yard or backyard display” of the American flag or military flags.

• Authority to Regulate: An HOA “shall adopt reasonable rules and regulations regarding the placement and manner of display.” Crucially, the statute specifies that these rules “may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole… but shall not prohibit the installation of a flagpole.”

Four Seasons at the Manor Architectural Guidelines

• Original Rule (May 2016): “No flagpole shall be installed without the prior written approval of the Architectural Committee… and only one flagpole is permitted per Lot.” The maximum height was 12 feet.

• Amended Rule (November 8, 2018): The Board amended the guidelines, increasing the maximum pole height to 20 feet and adding rules for illumination at night. However, “The Board did not change the limit of one flagpole per lot.”

Four Seasons at the Manor CC&Rs

• CC&R § 7.8 (Board Approval for Initial Application): Requires the Board to “inform the submitting party of the final decision” and provide the owner with a “written response” within 60 days.

• CC&R § 7.9 (Appeals): In the event of an appeal of a disapproval, it requires the Board to “consult with the Architectural Committee” and “render its written decision” within 45 days. It further states that “Failure of the Board to render a decision within said forth-five (45) day period shall be deemed approval of the submission.”

IV. Administrative Law Judge’s Decision and Rationale

The ALJ’s order denied the Petitioner’s petition, affirming the HOA’s right to enforce its one-flagpole rule. The legal conclusions underpinning this decision were definitive.

Key Legal Conclusions

1. Burden of Proof Not Met: The Petitioner bore the burden of proving that the HOA violated the CC&Rs by a “preponderance of the evidence.” The ALJ concluded she failed to meet this standard.

2. HOA Rule Is Reasonable and Legal: The one-flagpole guideline is a reasonable rule explicitly authorized under A.R.S. § 33-1808(B). Because the Petitioner could fly both flags from a single pole, the HOA was regulating the manner of display, not prohibiting it.

3. Credibility of Testimony: The ALJ found the testimony of HOA President Tony Nunziato—that the Board consulted the committee, made a decision, and verbally informed the Petitioner—to be “credible and supported by the minutes of the meeting.” Conversely, the Petitioner’s testimony that the Board did not make a decision was found to be “incredible.”

4. Interpretation of the Appeals Process (CC&R § 7.9): This was a pivotal point of the ruling.

◦ Decision Rendered: The ALJ determined the Board “orally reached a decision” at the November 8, 2018 meeting, thus “rendering a decision” as required.

◦ Written Record Created: The draft meeting minutes posted on December 4, 2018, constituted a “writing memorializing its decision” within the 45-day timeframe that began with the October 1, 2018 appeal.

◦ No Direct Notification Required for Appeals: The ALJ applied the “negative implication cannon of contract construction.” Because CC&R § 7.8 (for initial applications) explicitly requires a written response be provided to the owner, and CC&R § 7.9 (for appeals) does not contain this specific language, the latter rule only requires that a written decision be created, not necessarily delivered to the appellant.

5. “Deemed Approval” Clause Not Triggered: Because the Board rendered a decision and created a written record within the 45-day period, the Petitioner did not establish that her request should have been deemed approved.

The final order concluded that the HOA Board can properly find Ms. Monsanto in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.


John A Sellers v. Rancho Madera Condominium Association

Posted on by

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-RHG Decision – 706533.pdf

Uploaded 2025-10-08T07:07:14 (42.2 KB)

19F-H1918010-REL-RHG Decision – 707530.pdf

Uploaded 2025-10-08T07:07:15 (111.5 KB)





Briefing Doc – 19F-H1918010-REL-RHG


Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”


John A Sellers v. Rancho Madera Condominium Association

Posted on by

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-RHG Decision – 706533.pdf

Uploaded 2025-10-09T03:33:29 (42.2 KB)

19F-H1918010-REL-RHG Decision – 707530.pdf

Uploaded 2025-10-09T03:33:29 (111.5 KB)





Briefing Doc – 19F-H1918010-REL-RHG


Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”


John A Sellers vs. Rancho Madera Condominium Association

Posted on by

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 by

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)

Debbie Westerman v. Bridgewood Townhomes

Posted on by

Case Summary

Case ID 18F-H1818028-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-26
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debbie Westerman Counsel —
Respondent Bridgewood Nine 30 Property Owners Association, Inc. aka Bridgewood Townhomes Counsel Mark E. Lines and R. Patrick Whelan

Alleged Violations

CC&R § 5(G)

Outcome Summary

The ALJ denied the petition, concluding the Respondent HOA did not unreasonably deny the Petitioner's architectural request. The HOA's standard specification requiring 4” x 8” x 16” CMU blocks for courtyard walls was found to be reasonable for maintaining architectural continuity consistent with the original Al Beadle design of the community.

Why this result: Petitioner failed to prove that the HOA's denial was unreasonable or that the specified 4” x 8” x 16” CMU block was inferior to the 8” x 8” x 16” CMU block she requested, and compliance with the HOA's reasonable specifications was required.

Key Issues & Findings

Unreasonable denial of architectural request to build a courtyard wall

Petitioner alleged the HOA violated CC&R § 5(G) by unreasonably denying her request to construct a courtyard wall using 8” x 8” x 16” CMU blocks, which did not comply with the HOA's Wall Construction Specifications & Conditions requiring 4” x 8” x 16” CMU blocks.

Orders: Petition denied because Petitioner failed to establish that CC&R § 5(G) required the Respondent to approve her Architectural Request which did not comply with Respondent’s Wall Construction Specifications & Conditions.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • CC&R § 5(G)
  • CC&R § 7(B)
  • CC&R § 5(J)

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Wall Construction, CMU block, Architectural Standard
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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

18F-H1818028-REL Decision – 631265.pdf

Uploaded 2025-10-08T07:04:42 (161.6 KB)





Briefing Doc – 18F-H1818028-REL


Briefing Document: Westerman v. Bridgewood Townhomes HOA (Case No. 18F-H1818028-REL)

Executive Summary

This document synthesizes the findings and decision in the case of Debbie Westerman versus the Bridgewood Nine 30 Property Owners Association, Inc. (HOA). The central conflict involved the HOA’s denial of Ms. Westerman’s architectural request to construct a courtyard wall using 8” x 8” x 16” concrete masonry unit (CMU) blocks, which deviated from the association’s established standard of 4” x 8” x 16” CMU blocks.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision rested on the finding that the HOA’s architectural standards were reasonable and established to maintain the community’s original design integrity. The petitioner failed to meet the burden of proof required to show that the HOA’s denial was unreasonable or that the specified building materials were in any significant way inferior. The HOA successfully argued that its “Wall Construction Specifications & Conditions,” in place since 2005, were created to preserve the architectural continuity of the original “Al Beadle design” and have been consistently applied to numerous other homeowner projects.

1. Case Overview and Core Dispute

• Parties:

◦ Petitioner: Debbie Westerman, owner of condominium unit 31 in Bridgewood Townhomes.

◦ Respondent: Bridgewood Nine 30 Property Owners Association, Inc. (also known as Bridgewood Townhomes).

• Jurisdiction: The case was heard by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate on January 23, 2018.

• Core Allegation: The petitioner alleged that the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5(G) by unreasonably denying her request to build a courtyard wall with 8” x 8” x 16” CMU blocks. The HOA’s established specification required the use of 4” x 8” x 16” CMU blocks.

2. Chronology of the Dispute

The key events leading to the administrative hearing occurred between October 2017 and January 2018.

Oct 25, 2017

Michael Brubaker, the HOA Board President, emailed the petitioner with the association’s “Wall Construction Specifications & Conditions.”

Oct 25, 2017

The petitioner submitted an Architectural Request to build a wall with 8″ x 8″ x 16″ CMU blocks, acknowledging the deviation from specifications.

Oct 25, 2017

Mr. Brubaker sent a follow-up email cautioning the petitioner not to pre-order non-conforming materials as her request was not yet approved.

Nov 29, 2017

Mr. Brubaker emailed the petitioner, acknowledging her request as “extraordinary” and stating the Board would need to meet to consider it.

Dec 28, 2017

The petitioner was formally notified of a Board meeting scheduled for January 2, 2018, to review her request.

Jan 2, 2018

The petitioner attended the Board meeting. The Board unanimously rejected her request because it was contrary to the established specifications and “the historical aspects of our compliance structure.” The Board noted its willingness to approve a compliant wall, but the petitioner “stated that she [was] unwilling to comply.”

Jan 8, 2018

The HOA’s attorney sent a letter to the petitioner summarizing the legal basis for the denial.

Jan 23, 2018

The petitioner filed her formal petition with the Arizona Department of Real Estate.

3. Petitioner’s Arguments and Evidence (Debbie Westerman)

The petitioner’s case was built on three main arguments: the superiority of her proposed materials, the inconsistency of community standards, and the questionable validity of the HOA’s rules.

• Material Superiority: The petitioner claimed her proposed 8” x 8” x 16” blocks were stronger, less expensive, and visually identical to the required blocks.

◦ Evidence: She testified that three different contractors advised her that the larger blocks would be cheaper due to needing fewer units and less mortar.

◦ Evidence: Her subcontractor, Richard Ross, testified that using twice as many blocks (as required by the 4″ specification) “doubles the chance of the wall failing.”

• Inconsistent Community Standards: The petitioner argued that the HOA did not enforce a uniform aesthetic, negating the need for strict adherence to the block size specification.

◦ Evidence: She submitted photographs (Exhibits A5, A6) of walls at units 34 and 38, owned by Board President Michael Brubaker, which she claimed were built with larger blocks visible through stucco.

◦ Evidence: She submitted a photograph (Exhibit A11) showing courtyard walls of different heights, although wall height was not the subject of her dispute.

• Questionable Rule Authenticity: At the hearing, the petitioner challenged the validity of the “Wall Construction Specifications & Conditions” document itself.

◦ Argument: She argued the document was not authentic because the HOA did not produce the official Board meeting minutes from 2005 when the rules were allegedly adopted. This challenge was raised for the first time at the hearing.

4. Respondent’s Arguments and Evidence (Bridgewood HOA)

The HOA’s defense was centered on its legal authority, the reasonableness of its established architectural standards, and the consistent enforcement of its rules.

• Adherence to Established Architectural Standards: The HOA’s primary defense was that its denial was based on a reasonable and long-standing architectural rule.

◦ Authority: The HOA cited CC&R § 5(J), which grants the Board the authority to adopt reasonable rules concerning the use of common elements. Rule 7(a) requires Board approval for any exterior alterations.

◦ Evidence: The HOA submitted the “Wall Construction Specifications & Conditions” (Exhibit 3), which Mr. Brubaker credibly testified was adopted by the Board on March 22, 2005.

◦ Purpose of the Rule: Mr. Brubaker stated the rule’s purpose was to ensure architectural continuity. An email to the petitioner (Exhibit 7) explained:

• Consistent Enforcement: The HOA demonstrated that the rule was not arbitrary but had been consistently applied.

◦ Evidence: Mr. Brubaker testified that since the program’s adoption, “twenty-nine homeowners have had applications approved and constructed courtyard walls to specification.” Four additional compliant applications were approved since the petitioner’s submission. A photograph of a recently completed, compliant wall (Ms. Warren’s) was submitted as Exhibit 16.

• Rebuttal of Petitioner’s Claims: The HOA directly countered the petitioner’s key arguments.

◦ On Inconsistency: Mr. Brubaker testified that the non-conforming walls at units 34 and 38 were constructed before 1980 by the original developer, prior to the HOA assuming control of the property (Exhibit 14).

◦ On Structural Integrity: The HOA submitted two technical bulletins from the National Concrete Masonry Association (Exhibits 19 and 20). These documents stated that 4″ high (“half-high”) units can be considered “structurally equivalent to their corresponding 8-in. (203-mm) high unit” as long as the cross-section is the same.

◦ On Cost: The HOA submitted a bid from J E Bowen Construction for $6,165.00 to build a compliant wall for the petitioner’s unit (Exhibit 17). It also noted that another homeowner’s recent compliant wall cost only $4,268.23 (Exhibit 15).

5. Administrative Law Judge’s Conclusions and Final Order

The Administrative Law Judge (ALJ) found comprehensively in favor of the Respondent (HOA), denying the Petitioner’s petition.

• Burden of Proof: The ALJ established that the petitioner bore the burden of proving her case by a “preponderance of the evidence” and failed to do so.

• Reasonableness of HOA Standards: The decision affirmed the HOA’s right to establish and enforce aesthetic standards.

• Validity of Specifications: The petitioner’s challenge to the authenticity of the HOA’s rules was dismissed. The ALJ found that she “did not establish that Respondent’s Wall Construction Specifications & Conditions was fraudulent or improperly adopted.”

• Materiality of Block Type: The ALJ concluded that the petitioner failed to prove her central claim that the larger blocks were superior.

• Aesthetic Impact: The ALJ determined that the petitioner’s proposed wall would violate the community’s aesthetic standards, noting that a wall using the larger blocks “would be noticeably different from walls that were constructed in compliance with the Wall Construction Specifications & Conditions and other Al Beadle design elements.”

Final Order: “IT IS ORDERED that Petitioners’ petition is denied because she has not established that CC&R § 5(G) required the Respondent to approve her Architectural Request to build a block wall around her patio that did not comply with Respondent’s Wall Construction Specifications & Conditions.”

The order, issued on April 26, 2018, is binding unless a rehearing is requested within 30 days of service.


Debbie Westerman v. Bridgewood Townhomes

Posted on by

Case Summary

Case ID 18F-H1818028-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-26
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Debbie Westerman Counsel —
Respondent Bridgewood Nine 30 Property Owners Association, Inc. aka Bridgewood Townhomes Counsel Mark E. Lines and R. Patrick Whelan

Alleged Violations

CC&R § 5(G)

Outcome Summary

The ALJ denied the petition, concluding the Respondent HOA did not unreasonably deny the Petitioner's architectural request. The HOA's standard specification requiring 4” x 8” x 16” CMU blocks for courtyard walls was found to be reasonable for maintaining architectural continuity consistent with the original Al Beadle design of the community.

Why this result: Petitioner failed to prove that the HOA's denial was unreasonable or that the specified 4” x 8” x 16” CMU block was inferior to the 8” x 8” x 16” CMU block she requested, and compliance with the HOA's reasonable specifications was required.

Key Issues & Findings

Unreasonable denial of architectural request to build a courtyard wall

Petitioner alleged the HOA violated CC&R § 5(G) by unreasonably denying her request to construct a courtyard wall using 8” x 8” x 16” CMU blocks, which did not comply with the HOA's Wall Construction Specifications & Conditions requiring 4” x 8” x 16” CMU blocks.

Orders: Petition denied because Petitioner failed to establish that CC&R § 5(G) required the Respondent to approve her Architectural Request which did not comply with Respondent’s Wall Construction Specifications & Conditions.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • CC&R § 5(G)
  • CC&R § 7(B)
  • CC&R § 5(J)

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Wall Construction, CMU block, Architectural Standard
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)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

18F-H1818028-REL Decision – 631265.pdf

Uploaded 2025-10-09T03:32:31 (161.6 KB)





Briefing Doc – 18F-H1818028-REL


Briefing Document: Westerman v. Bridgewood Townhomes HOA (Case No. 18F-H1818028-REL)

Executive Summary

This document synthesizes the findings and decision in the case of Debbie Westerman versus the Bridgewood Nine 30 Property Owners Association, Inc. (HOA). The central conflict involved the HOA’s denial of Ms. Westerman’s architectural request to construct a courtyard wall using 8” x 8” x 16” concrete masonry unit (CMU) blocks, which deviated from the association’s established standard of 4” x 8” x 16” CMU blocks.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision rested on the finding that the HOA’s architectural standards were reasonable and established to maintain the community’s original design integrity. The petitioner failed to meet the burden of proof required to show that the HOA’s denial was unreasonable or that the specified building materials were in any significant way inferior. The HOA successfully argued that its “Wall Construction Specifications & Conditions,” in place since 2005, were created to preserve the architectural continuity of the original “Al Beadle design” and have been consistently applied to numerous other homeowner projects.

1. Case Overview and Core Dispute

• Parties:

◦ Petitioner: Debbie Westerman, owner of condominium unit 31 in Bridgewood Townhomes.

◦ Respondent: Bridgewood Nine 30 Property Owners Association, Inc. (also known as Bridgewood Townhomes).

• Jurisdiction: The case was heard by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate on January 23, 2018.

• Core Allegation: The petitioner alleged that the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) § 5(G) by unreasonably denying her request to build a courtyard wall with 8” x 8” x 16” CMU blocks. The HOA’s established specification required the use of 4” x 8” x 16” CMU blocks.

2. Chronology of the Dispute

The key events leading to the administrative hearing occurred between October 2017 and January 2018.

Oct 25, 2017

Michael Brubaker, the HOA Board President, emailed the petitioner with the association’s “Wall Construction Specifications & Conditions.”

Oct 25, 2017

The petitioner submitted an Architectural Request to build a wall with 8″ x 8″ x 16″ CMU blocks, acknowledging the deviation from specifications.

Oct 25, 2017

Mr. Brubaker sent a follow-up email cautioning the petitioner not to pre-order non-conforming materials as her request was not yet approved.

Nov 29, 2017

Mr. Brubaker emailed the petitioner, acknowledging her request as “extraordinary” and stating the Board would need to meet to consider it.

Dec 28, 2017

The petitioner was formally notified of a Board meeting scheduled for January 2, 2018, to review her request.

Jan 2, 2018

The petitioner attended the Board meeting. The Board unanimously rejected her request because it was contrary to the established specifications and “the historical aspects of our compliance structure.” The Board noted its willingness to approve a compliant wall, but the petitioner “stated that she [was] unwilling to comply.”

Jan 8, 2018

The HOA’s attorney sent a letter to the petitioner summarizing the legal basis for the denial.

Jan 23, 2018

The petitioner filed her formal petition with the Arizona Department of Real Estate.

3. Petitioner’s Arguments and Evidence (Debbie Westerman)

The petitioner’s case was built on three main arguments: the superiority of her proposed materials, the inconsistency of community standards, and the questionable validity of the HOA’s rules.

• Material Superiority: The petitioner claimed her proposed 8” x 8” x 16” blocks were stronger, less expensive, and visually identical to the required blocks.

◦ Evidence: She testified that three different contractors advised her that the larger blocks would be cheaper due to needing fewer units and less mortar.

◦ Evidence: Her subcontractor, Richard Ross, testified that using twice as many blocks (as required by the 4″ specification) “doubles the chance of the wall failing.”

• Inconsistent Community Standards: The petitioner argued that the HOA did not enforce a uniform aesthetic, negating the need for strict adherence to the block size specification.

◦ Evidence: She submitted photographs (Exhibits A5, A6) of walls at units 34 and 38, owned by Board President Michael Brubaker, which she claimed were built with larger blocks visible through stucco.

◦ Evidence: She submitted a photograph (Exhibit A11) showing courtyard walls of different heights, although wall height was not the subject of her dispute.

• Questionable Rule Authenticity: At the hearing, the petitioner challenged the validity of the “Wall Construction Specifications & Conditions” document itself.

◦ Argument: She argued the document was not authentic because the HOA did not produce the official Board meeting minutes from 2005 when the rules were allegedly adopted. This challenge was raised for the first time at the hearing.

4. Respondent’s Arguments and Evidence (Bridgewood HOA)

The HOA’s defense was centered on its legal authority, the reasonableness of its established architectural standards, and the consistent enforcement of its rules.

• Adherence to Established Architectural Standards: The HOA’s primary defense was that its denial was based on a reasonable and long-standing architectural rule.

◦ Authority: The HOA cited CC&R § 5(J), which grants the Board the authority to adopt reasonable rules concerning the use of common elements. Rule 7(a) requires Board approval for any exterior alterations.

◦ Evidence: The HOA submitted the “Wall Construction Specifications & Conditions” (Exhibit 3), which Mr. Brubaker credibly testified was adopted by the Board on March 22, 2005.

◦ Purpose of the Rule: Mr. Brubaker stated the rule’s purpose was to ensure architectural continuity. An email to the petitioner (Exhibit 7) explained:

• Consistent Enforcement: The HOA demonstrated that the rule was not arbitrary but had been consistently applied.

◦ Evidence: Mr. Brubaker testified that since the program’s adoption, “twenty-nine homeowners have had applications approved and constructed courtyard walls to specification.” Four additional compliant applications were approved since the petitioner’s submission. A photograph of a recently completed, compliant wall (Ms. Warren’s) was submitted as Exhibit 16.

• Rebuttal of Petitioner’s Claims: The HOA directly countered the petitioner’s key arguments.

◦ On Inconsistency: Mr. Brubaker testified that the non-conforming walls at units 34 and 38 were constructed before 1980 by the original developer, prior to the HOA assuming control of the property (Exhibit 14).

◦ On Structural Integrity: The HOA submitted two technical bulletins from the National Concrete Masonry Association (Exhibits 19 and 20). These documents stated that 4″ high (“half-high”) units can be considered “structurally equivalent to their corresponding 8-in. (203-mm) high unit” as long as the cross-section is the same.

◦ On Cost: The HOA submitted a bid from J E Bowen Construction for $6,165.00 to build a compliant wall for the petitioner’s unit (Exhibit 17). It also noted that another homeowner’s recent compliant wall cost only $4,268.23 (Exhibit 15).

5. Administrative Law Judge’s Conclusions and Final Order

The Administrative Law Judge (ALJ) found comprehensively in favor of the Respondent (HOA), denying the Petitioner’s petition.

• Burden of Proof: The ALJ established that the petitioner bore the burden of proving her case by a “preponderance of the evidence” and failed to do so.

• Reasonableness of HOA Standards: The decision affirmed the HOA’s right to establish and enforce aesthetic standards.

• Validity of Specifications: The petitioner’s challenge to the authenticity of the HOA’s rules was dismissed. The ALJ found that she “did not establish that Respondent’s Wall Construction Specifications & Conditions was fraudulent or improperly adopted.”

• Materiality of Block Type: The ALJ concluded that the petitioner failed to prove her central claim that the larger blocks were superior.

• Aesthetic Impact: The ALJ determined that the petitioner’s proposed wall would violate the community’s aesthetic standards, noting that a wall using the larger blocks “would be noticeably different from walls that were constructed in compliance with the Wall Construction Specifications & Conditions and other Al Beadle design elements.”

Final Order: “IT IS ORDERED that Petitioners’ petition is denied because she has not established that CC&R § 5(G) required the Respondent to approve her Architectural Request to build a block wall around her patio that did not comply with Respondent’s Wall Construction Specifications & Conditions.”

The order, issued on April 26, 2018, is binding unless a rehearing is requested within 30 days of service.


Jerry L. Webster v. Mountain Rose Homeowners Association

Posted on by

Case Summary

Case ID 18F-H1817019-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-02-09
Administrative Law Judge Velva Moses-Thompson
Outcome total_loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jerry L. Webster Counsel —
Respondent Mountain Rose Homeowners Association Counsel Nathan Tennyson, Esq.

Alleged Violations

CC&Rs Article 10, Section 10.8

Outcome Summary

The Petitioner's claim that the HOA violated CC&Rs Article 10.8 (Notice of Violation) was dismissed because the Article governs only recorded notices, and the Petitioner did not prove the notices in question were recorded.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs Article 10.8, because that provision applies only to recorded notices, and the notices issued to the Petitioner were not recorded.

Key Issues & Findings

Alleged violation of CC&R notice requirements regarding clarity and completeness of violation notices.

The Petitioner alleged the HOA violated CC&Rs Article 10.8 because the violation notices sent to him failed to include five mandatory pieces of information required by that section of the CC&Rs. The Petitioner also sought the refund of $175 in fines.

Orders: Petitioners' petition in this matter is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.A.C. R2-19-119

Analytics Highlights

Topics: HOA, CC&R, Notice of Violation, Recording
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.A.C. R2-19-119

Audio Overview

Decision Documents

18F-H1817019-REL Decision – 620124.pdf

Uploaded 2025-10-08T07:04:00 (78.5 KB)





Briefing Doc – 18F-H1817019-REL


Case Briefing: Webster v. Mountain Rose Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 18F-H1817019-REL, wherein Petitioner Jerry L. Webster’s complaint against the Mountain Rose Homeowners Association was dismissed. The central issue revolved around Mr. Webster’s claim that the HOA engaged in a pattern of harassment by issuing vague and improper violation notices that failed to comply with Article 10.8 of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

The case was decided on a critical legal interpretation of the CC&Rs. The presiding judge determined that the specific requirements of Article 10.8, which Mr. Webster cited as being violated, apply exclusively to violation notices that are formally “Recorded” with the Maricopa County Recorder’s office. The petitioner failed to provide any evidence, or even make the claim, that the notices he received had been recorded. Consequently, Mr. Webster did not meet his burden of proof to demonstrate that the HOA had violated the cited article. The dismissal of the petition was based entirely on this procedural and definitional distinction, without a ruling on the petitioner’s underlying allegations of harassment or selective enforcement.

Case Background

• Parties:

◦ Petitioner: Jerry L. Webster, a homeowner and member of the Mountain Rose Homeowners Association.

◦ Respondent: Mountain Rose Homeowners Association (“Mountain Rose”), located in Scottsdale, Arizona.

• Adjudicating Body:

◦ The Office of Administrative Hearings in Phoenix, Arizona.

◦ Administrative Law Judge: Velva Moses-Thompson.

• Key Dates:

◦ 2016–2017: Mountain Rose issues a series of violation notices to Mr. Webster regarding tree trimming and debris cleanup.

◦ December 6, 2017: Mr. Webster files a petition with the Arizona Department of Real Estate.

◦ February 9, 2018: A hearing is held.

◦ February 9, 2018: The Administrative Law Judge issues the decision dismissing the petition.

Petitioner’s Allegations and Arguments

Mr. Webster’s petition centered on the claim that the HOA’s actions constituted harassment and violated specific provisions of the governing documents.

Core Claim: Violation of CC&Rs Article 10.8

Mr. Webster contended that the violation notices he received from Mountain Rose were invalid because they failed to contain information mandated by Article 10.8 (“Notice of Violation”) of the CC&Rs. Specifically, he alleged the notices omitted the following required elements:

• (ii) The legal description of the lot against which the notice is being Recorded.

• (iii) A brief description of the nature of the violation.

• (iv) A statement that the notice is being Recorded by the Association pursuant to the Declaration.

• (v) A statement of the specific steps which must be taken by the Owner or occupant to cure the violation.

Allegations of Harassment and Prejudicial Treatment

In his petition, Mr. Webster framed the HOA’s actions as a targeted and unfair campaign against him.

• Stated Intent: “The intent of this action is to stop the HOA from violating our civil rights by prejudicially harassing us with unclear and unwarranted violation notices.”

• History of Conflict: He alleged that “The HOA has harassed us for over 10 years with vague violation notices.”

• Lack of Communication: He claimed that his “Numerous requests were made for clarification…which were ignored.”

• Financial Penalties: Mr. Webster stated he was recently fined three times for a total of $175, which he sought to have refunded.

• Alleged Bias: To demonstrate selective enforcement, Mr. Webster noted that a review of the neighborhood revealed “22 trees touching dwellings, including ours,” and stated, “It is very doubtful any other member received notices or fines for identical circumstances.”

• Supporting Evidence: Mr. Webster submitted an aerial photo from 2012 showing the tree in a similar condition, a 2017 photo of another home with a tree touching the dwelling, and a 2017 photo of HOA-maintained trees.

Respondent’s Position

The Mountain Rose HOA, represented by Nathan Tennyson, Esq., presented a focused defense based on the specific language of the CC&Rs.

• Central Argument: The HOA contended that the violation notices issued to Mr. Webster were not recorded with the Maricopa County Recorder.

• Legal Position: Because the notices were not recorded, the stringent requirements outlined in Article 10.8 did not apply to them.

• Additional Detail: The HOA also argued that it had previously communicated the necessary corrective action to Mr. Webster, stating that “his tree needed to be trimmed 8 feet above the ground.”

The Decisive Legal Interpretation and Ruling

The Administrative Law Judge’s decision hinged on the precise definition and application of “Recording” as established within the Mountain Rose CC&Rs.

The Definition of “Recording”

Article 1.33 of the CC&Rs provides the controlling definition:

“Recording” means placing an instrument of public record in the office of County Recorder of Maricopa County, Arizona, and “Recorded” means having been so placed of public record.

Application of Law to Facts

The Judge concluded that Mr. Webster’s entire case rested on a misapplication of Article 10.8.

• Limited Scope of Article 10.8: The ruling states, “Mountain Rose CC&Rs Article 10.8. applies to the recording of notices and recorded notices.”

• Burden of Proof: Under Arizona law (A.A.C. R2-19-119), the burden of proof fell to the petitioner, Mr. Webster, to demonstrate his claim by a preponderance of the evidence.

• Crucial Factual Finding: The decision explicitly states, “There was no evidence presented at hearing that the notices issued to Mr. Webster were recorded.“

• Petitioner’s Failure to Allege: The Judge further noted, “Mr. Webster did not even contend that Mountain Rose recorded the notices issued to him.”

Conclusion of Law

Based on the evidence and the plain language of the CC&Rs, the Judge found that Mr. Webster failed to make his case.

“Mr. Webster failed to establish by a preponderance of the evidence that Mountain Rose violated its CC&Rs as described above.”

Final Order and Disposition

The petition was summarily dismissed based on the failure to prove that the relevant CC&R article was applicable to the facts presented.

Order:

“IT IS ORDERED that Petitioners’ petition in this matter is dismissed.”

The order was dated February 9, 2018, and transmitted to the parties on February 28, 2018.