Tag Archives: CC&Rs

David & Brenda Norman v. Rancho Del Lago Community Association

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Case Summary

Case ID 19F-H1919051-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-28
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David and Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Ashley N. Moscarello

Alleged Violations

CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.

Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).

Key Issues & Findings

Alleged violation by HOA approving a block wall built by neighbors (Hendersons)

Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.

Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • 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

Analytics Highlights

Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)(1)
  • 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

Audio Overview

Decision Documents

19F-H1919051-REL Decision – 710478.pdf

Uploaded 2025-10-09T03:34:10 (150.0 KB)

19F-H1919051-REL Decision – 711115.pdf

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Briefing Doc – 19F-H1919051-REL


Case Briefing: Norman v. Rancho Del Lago Community Association

Executive Summary

This briefing document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919051-REL, involving homeowners David and Brenda Norman (Petitioners) and the Rancho Del Lago Community Association (Respondent). The core of the dispute centers on the Petitioners’ allegation that the Respondent’s Architectural Review Committee (ARC) violated community guidelines by approving a wall built by the Petitioners’ neighbors, the Hendersons.

The Petitioners claimed the Henderson’s wall, constructed 6 inches inside the property line, created a situation where any wall they might build on their property would be a “closely parallel wall,” which is prohibited by the community’s Common Project Guidelines § 3.11(D)(1). They requested that the Respondent either force the Hendersons to allow the Petitioners to connect to their wall, effectively making it a shared “party wall,” or compel the Hendersons to demolish it.

The Administrative Law Judge dismissed the petition entirely. The primary legal basis for the dismissal was a lack of jurisdiction; under Arizona statute A.R.S. § 32-2199.01(A)(1), the Arizona Department of Real Estate cannot hear disputes solely between homeowners in which the association is not a party. The judge concluded this was fundamentally a neighbor-versus-neighbor conflict. Furthermore, the judge characterized the wall the Petitioners sought to build as an “archetypical spite fence” and noted that the Petitioners had failed to prove the Respondent had violated any community documents.

Case Overview

Parties and Key Entities

Name/Entity

Description

Petitioners

David and Brenda Norman

Homeowners in the Rancho Del Lago Community.

Respondent

Rancho Del Lago Community Association

The homeowners’ association (HOA) for the community.

Neighbors

The Hendersons

The Petitioners’ next-door neighbors who built the disputed wall.

Management Co.

Management Solutions

The company managing the Respondent HOA.

Witness (Respondent)

Spencer Brod

Employee of Management Solutions overseeing the Respondent’s affairs.

Administrative Law Judge

Diane Mihalsky

Presiding judge from the Office of Administrative Hearings.

Regulating Body

Arizona Department of Real Estate

State agency authorized to hear certain HOA disputes.

Adjudicating Body

Office of Administrative Hearings

Independent state agency that conducted the evidentiary hearing.

Procedural Details

Detail

Information

Case Number

19F-H1919051-REL

Petition Filed

On or about February 28, 2019

Hearing Date

May 8, 2019

Amended Decision Date

May 28, 2019

Timeline of Key Events

• December 2003: The Respondent’s ARC adopts the Common Project Guidelines, which govern all exterior improvements.

• March 8, 2017: The Hendersons submit an Architectural Variance Request (AVR) to extend the common wall between their property and the Petitioners’. Mrs. Norman signs the request, giving consent. The ARC approves this request.

• April 27, 2017: The Hendersons submit a new AVR to build a wall extension 6 inches inside their property line, making it a private wall rather than a shared party wall. The record suggests Mrs. Norman may have rescinded her earlier approval for the common wall.

• May 10, 2017: The ARC approves the Hendersons’ request to build the wall 6 inches inside their property line.

• September 5, 2017: The Petitioners submit an AVR to build an 11-foot wide concrete driveway. The ARC denies the request.

• Post-September 5, 2017: Despite the denial, the Petitioners construct the 11-foot wide driveway and are subsequently issued a Notice of Violation by the Respondent.

• September 7, 2017: The Petitioners submit an AVR to build a wall extension on their property, positioned at least 3 feet away from the Hendersons’ wall.

• October 13, 2017: The ARC approves the Petitioners’ wall extension request.

• Post-October 13, 2017: The Petitioners decide not to build the approved wall, stating their contractor advised them against “giving up” the 3 feet of property that would lie between the two walls.

• By November 2017: The Hendersons’ wall appears to have been constructed.

• February 28, 2019: The Petitioners file a petition with the Arizona Department of Real Estate, alleging the Respondent violated community rules.

• March 27, 2019: The Petitioners file a new AVR to build a wall directly on the property line. This request did not include the Hendersons’ required consent and was still pending at the time of the hearing.

Governing Documents and Key Provisions

The dispute and subsequent legal decision referenced several specific articles from the community’s Covenants, Conditions, and Restrictions (CC&Rs) and the Common Project Guidelines.

Document

Provision

Description

Article I § (p)

Defines “Party Walls” built on a property line, establishing equal right of use, joint responsibility for maintenance and repair, and a process for the Board to resolve disputes over construction or cost-sharing.

Article II § 2(a)

Requires prior written approval from the ARC for any improvements that alter the exterior appearance of a property.

Article XII § 1

Establishes the ARC, noting that its decisions are “sole, absolute and final on all matters submitted to it.”

Common Project Guidelines

Section 3.11(D)(1)

States that “Closely parallel walls shall be disapproved.” The term “closely parallel” is not defined in the guidelines. This provision was the central focus of the Petitioners’ complaint.

Common Project Guidelines

Section 4.21

Grants the ARC the right “to waive, vary, or otherwise modify any of the standards or procedures set forth herein at its discretion, for good cause shown.”

Summary of Testimony and Evidence

Testimony of Brenda Norman (Petitioner)

• Motivation for Wall: Stated that she and her husband are in law enforcement and want to enclose their side yard to protect utility meters from potential vandalism.

• Reason for Not Building Approved Wall: Explained that their contractor advised them it was “crazy to give up the 3’ of property” that would be inaccessible between their proposed wall and the Hendersons’ wall.

• Relationship with Neighbors: Acknowledged that the Petitioners “do not get along very well with the Hendersons” and therefore never asked for their consent for a wall on the property line.

• Belief Regarding Parallel Walls: Believes that if she submitted a plan for a wall just inside her property line, it would be denied under the “close parallel wall” rule.

• Requested Action: Opined that the Respondent should force the Hendersons to tear down their wall because it is not uniformly 6 inches from the property line.

Testimony of Spencer Brod (for Respondent)

• HOA Policy: Testified that the HOA “never gets involved in disputes between neighbors” and that it is the homeowner’s responsibility to obtain neighbor consent for common wall projects.

• Party vs. Private Walls: Explained that neighbor consent is required only for “party walls” on the property line due to shared maintenance liability. The Hendersons’ wall was approved because it was on their own property and therefore not a party wall.

• Enforcement and Inspection: Admitted that the Hendersons’ wall may not be uniformly 6 inches from the line but stated the Respondent has no one to perform a “thorough inspection” and had not sent a violation letter.

• “Closely Parallel Walls” Interpretation: Testified that while the term is undefined, the ARC’s approval of the Petitioners’ plan for a wall 3 feet away indicates that “closely parallel” means a distance of less than 3 feet.

• Petitioners’ Unauthorized Construction: Confirmed that the Respondent sent the Petitioners a Notice of Violation for building a driveway that the ARC had explicitly denied.

Administrative Law Judge’s Conclusions of Law

The judge’s decision was based on a detailed analysis of the evidence, governing documents, and relevant state law.

1. Jurisdictional Failure: The primary reason for dismissal was a lack of jurisdiction. The judge cited A.R.S. § 32-2199.01(A)(1), which explicitly states, “The department does not have jurisdiction to hear [a]ny dispute among or between owners to which the association is not a party.” The judge determined this was a quintessential neighbor dispute, not a dispute with the HOA.

2. Failure to Meet Burden of Proof: The Petitioners bore the burden of proving by a “preponderance of the evidence” that the Respondent violated its own rules. The judge found they failed to do so.

3. Characterization as a “Spite Fence”: The decision describes the wall the Petitioners wish to build as an “archetypical spite fence between neighbors who cannot agree to mutually work for the improvement of their adjacent properties.”

4. HOA’s Limited Role: The judge affirmed that neither the CC&Rs nor the Common Project Guidelines compel the HOA to mediate or resolve disputes between neighbors by taking a side.

5. Distinction of Wall Types: The analysis distinguished between a party wall on a property line, which requires neighbor consent, and a private wall built entirely on one owner’s property, which does not. The Hendersons’ wall was approved as the latter.

6. Hypothetical Outcome: A concluding footnote in the decision states that even if the Department had jurisdiction, the Petitioners had not established that Guideline 3.11(D)(1) would authorize or require the Respondent to grant the relief they requested.

Final Order

IT IS ORDERED that the petition filed by David and Brenda Norman against the Respondent, Rancho Del Lago Community Association, is dismissed. The dismissal is based on the finding that the Arizona Department of Real Estate does not have jurisdiction to hear their dispute with the Hendersons.


David & Brenda Norman vs. Rancho Del Lago Community Association

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Case Summary

Case ID 19F-H1919051-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-28
Administrative Law Judge Diane Mihalsky
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David and Brenda Norman Counsel —
Respondent Rancho Del Lago Community Association Counsel Ashley N. Moscarello

Alleged Violations

CC&Rs § 3.11(D)(1) / Common Project Guidelines § 3.11(D)(1)

Outcome Summary

The Administrative Law Judge dismissed the petition filed by David and Brenda Norman against Rancho Del Lago Community Association, finding that the Department of Real Estate did not have jurisdiction to hear the dispute, as it was essentially a conflict between neighboring owners (Petitioners and Hendersons) regarding a wall.

Why this result: The Department lacked jurisdiction over the dispute among or between owners, per A.R.S. § 32-2199.01(A)(1).

Key Issues & Findings

Alleged violation by HOA approving a block wall built by neighbors (Hendersons)

Petitioners alleged that Respondent HOA violated CC&Rs § 3.11(D)(1) by approving a block wall built by their next-door neighbors, the Hendersons, and requested the Department require the Hendersons to permit Petitioners to connect to the wall or require the Hendersons to tear the wall down.

Orders: The petition was dismissed because the Department lacked jurisdiction to hear a dispute primarily among or between owners to which the association is not a party, pursuant to A.R.S. § 32-2199.01(A)(1).

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • 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

Analytics Highlights

Topics: Jurisdiction, HOA Governance, Architectural Review Committee (ARC), Party Wall, Neighbor Dispute, CC&Rs
Additional Citations:

  • A.R.S. § 32-2199.01(A)(1)
  • 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

Pointe Tapatio Community Association vs. Lanye C. and Devin E. Wilkey

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Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Audio Overview

Decision Documents

19F-H1919044-REL Decision – 706518.pdf

Uploaded 2025-10-09T03:34:04 (36.5 KB)

19F-H1919044-REL Decision – 706560.pdf

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Briefing Doc – 19F-H1919044-REL


Administrative Law Judge Decision Briefing: Pointe Tapatio Community Association v. Wilkey

Executive Summary

This briefing synthesizes the findings and decision in case number 19F-H1919044-REL, wherein the Pointe Tapatio Community Association petitioned against residents Lanye C. and Devin E. Wilkey for violating community covenants. The Administrative Law Judge (ALJ) found conclusively in favor of the petitioner, determining that the Wilkeys were operating a business from their residential unit in direct violation of the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The core of the violation centered on CC&R Article 3, Section 3.1, which prohibits any non-residential use that “creates traffic [or] parking.” The Wilkeys acknowledged that two employees of their payroll processing company, Devau Human Resources, regularly commuted to and worked from the unit, thereby creating both traffic and parking. This admission was sufficient to establish a clear and unambiguous breach of the covenant.

The respondents’ primary defense—that they had received verbal permission from a former property manager in 2009—was found to be unsubstantiated and insufficient. The ALJ ordered the Wilkeys to cease all business operations at the residence within 35 days and to pay a civil penalty of $500.00 to the Department of Real Estate within 60 days.

Case Overview

Case Number

19F-H1919044-REL

Petitioner

Pointe Tapatio Community Association

Respondents

Lanye C. Wilkey and Devin E. Wilkey

Hearing Date

April 26, 2019

Decision Date

May 7, 2019

Presiding Judge

Thomas Shedden, Administrative Law Judge

Location

Office of Administrative Hearings, Phoenix, Arizona

Allegation and Governing Rule

The Pointe Tapatio Community Association (Petitioner) alleged that Lanye C. Wilkey and Devin E. Wilkey (Respondents) were in violation of the community’s CC&Rs by using their property at 720 E. North Lane, Unit 1, as an office for their business, rather than exclusively as a residence.

The specific rule cited was CC&Rs Article 3, Section 3.1, which states:

“Residential. Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking … shall be conducted from any Residence [or part thereof.]”

The association requested an order for the Wilkeys to abide by the CC&Rs, the imposition of a civil penalty, and a refund of its filing fee.

Key Findings of Fact

The Business Operation

• Business Entity: The Wilkeys, who are mother and son, co-own and operate Devau Human Resources, a payroll processing company. The business had previously operated from a commercial location before moving to the residential unit in late 2009.

• On-Site Employees: The Wilkeys acknowledged that two employees of Devau Human Resources drive to the unit to work.

◦ One employee works Monday through Thursday, from 9:30 a.m. to 4:00 p.m.

◦ A second employee works Monday through Friday, from 9:30 a.m. to 5:00 p.m.

• Parking and Traffic: It was established that these employees at times park on the community’s streets, thereby creating both traffic and parking related to the business.

• Public Presence: Devau Human Resources’ website lists the E. North Lane address (as a mailing address only) and advertises office hours of 9:00 a.m. to 5:00 p.m., Monday through Friday. Google Maps also shows the business operating from this address.

• Admissions: Ms. Wilkey acknowledged during testimony that they consider the unit to be an office.

• Client Contact: The business does not have clients or customers come to the unit. Mail for the business is received at the unit.

The Respondents’ Defense

• Claim of Permission: The Wilkeys asserted that they received permission to move the business into the unit in 2009 from the property manager at the time, Howard Flisser.

• Lack of Evidence: The respondents acknowledged they had no written confirmation of this permission. Their belief was based on second- and third-hand information.

◦ Ms. Wilkey testified that she asked her husband (since deceased) if they could operate from the unit, who then asked a salesperson, who in turn allegedly asked Mr. Flisser and relayed that it was permissible.

◦ Mr. Wilkey testified that he believed they had permission because his father would not have taken the risk of moving the business without it.

• Claim of Residency: Mr. Wilkey testified that he considers the unit to be one of his two primary residences. However, when asked by attorneys for both parties how often he stayed there, he did not provide a responsive answer.

The Association’s Rebuttal and Position

• Timeline of Action: The Association sent a letter to the Wilkeys on August 8, 2018, informing them they were out of compliance and must cease business operations by August 31, 2018. The official petition was filed with the Department of Real Estate on January 17, 2019.

• Manager’s Testimony: Association board member Paula Duistermars testified that she and the association’s attorney had spoken to Howard Flisser a few days before the hearing. In that conversation, Mr. Flisser stated he could not recall giving permission and had volunteered twice that he “never gave permission for Devau to operate out of the unit.”

• Manager’s Authority: Ms. Duistermars also testified that Mr. Flisser, as property manager, did not have the authority to grant such permission; only the Association’s Board could do so.

• Permitted Businesses: The Association does allow certain home-based businesses that do not generate traffic or parking, such as telecommuting and teaching online classes. These do not require explicit Board permission.

• Origin of Complaint: The Board became aware of the Wilkeys’ business operation when another resident brought the issue to its attention. Ms. Duistermars was unaware of any specific complaints filed against the Wilkeys regarding traffic, parking, or noise.

Conclusions of Law and Rationale

The ALJ’s decision was based on the standard of a “preponderance of the evidence.” The core legal conclusions were as follows:

1. CC&Rs as a Binding Contract: The CC&Rs constitute a contract between the parties, and its terms must be complied with.

2. Unambiguous Language: The language in Article 3, Section 3.1 is clear and unambiguous. It is therefore enforced to give effect to the intent of the parties.

3. Violation Established: The preponderance of evidence demonstrated that the Wilkeys were operating a business from their unit. The Wilkeys’ own admission that two employees drive to and park at the unit to conduct business was sufficient to prove that their business “is creating both traffic and parking.”

4. Violation is Absolute: The ALJ noted there is no requirement in the CC&Rs that the traffic or parking must cause a separate violation or complaint. The mere fact that the business creates traffic and parking is sufficient to trigger the prohibition.

5. Finding of Violation: Based on the evidence, the Wilkeys are in violation of CC&R Article 3, Section 3.1.

6. Penalty Authority: Under ARIZ. REV. STAT. § 32-2199.02, the ALJ has the authority to order compliance and levy a civil penalty. A penalty of $500.00 was deemed appropriate given the unambiguous nature of the violation.

7. Filing Fee Denial: The Association’s request for a refund of its filing fee was denied, as it cited no authority showing this was within the tribunal’s power.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders to Respondents Layne C. Wilkey and Devin E. Wilkey:

• Cease Business Operations: Within thirty-five (35) days of the effective date of the Order, the Respondents must comply with CC&R Article 3, section 3.1 by ceasing business operations at 720 E. North Lane, Unit 1 (Lot 50), Phoenix, Arizona.

• Pay Civil Penalty: Within sixty (60) days of the effective date of the Order, the Respondents must pay a civil penalty of $500.00 to the Department of Real Estate.

• Rehearing Notice: This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.


Pointe Tapatio Community Association v. Lanye C. and Devin E. Willey

Posted on by

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Pointe Tapatio Community Association vs. Lanye C. and Devin E. Wilkey

Posted on by

Case Summary

Case ID 19F-H1919044-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-07
Administrative Law Judge Thomas Shedden
Outcome partial
Filing Fees Refunded $0.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Pointe Tapatio Community Association Counsel Lauren Vie
Respondent Lanye C. Wilkey and Devin E. Wilkey Counsel Joseph Velez

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

The ALJ found that the Respondents violated the CC&Rs by operating a business that created traffic and parking. The Respondents were ordered to cease business operations and pay a $500.00 civil penalty. The Petitioner's request for a refund of its filing fee was denied.

Why this result: Petitioner's request for refund of the filing fee was denied because they cited no authority showing that the refund was within the tribunal’s authority.

Key Issues & Findings

Violation of Residential Use covenant prohibiting traffic/parking generation by business

The Petitioner HOA alleged that the Respondents, co-owners of the unit, violated CC&Rs Article 3, section 3.1 by operating a payroll processing company out of the unit. The ALJ found that the business required two employees to drive to the unit daily, thereby creating traffic and parking, which clearly and unambiguously violates the CC&R provision prohibiting non-residential use that creates traffic or parking.

Orders: Respondents were ordered to cease business operations at the unit (720 E. North Lane, Unit 1) within thirty-five days to comply with CC&R Article 3, section 3.1, and pay a civil penalty of $500.00 to the Department of Real Estate within sixty days. The Petitioner's request for refund of the filing fee was denied.

Filing fee: $0.00, Fee refunded: No, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Analytics Highlights

Topics: HOA, CC&Rs, Business Use, Home Business, Parking, Traffic, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • Johnson v. The Pointe Community Association, 205 Ariz. 485, 73 P.3d 616 (App. 2003)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Grubb & Ellis Management Services, Inc. v. 407417 B.C., L.L.C., 213 Ariz. 83, 138 P.3d 1210 (App. 2006)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. section 32-2199.04
  • ARIZ. REV. STAT. section 41-1092.09

Audio Overview

Decision Documents

19F-H1919044-REL Decision – 706518.pdf

Uploaded 2025-10-08T07:08:46 (36.5 KB)

19F-H1919044-REL Decision – 706560.pdf

Uploaded 2025-10-08T07:08:47 (108.8 KB)





Briefing Doc – 19F-H1919044-REL


Administrative Law Judge Decision Briefing: Pointe Tapatio Community Association v. Wilkey

Executive Summary

This briefing synthesizes the findings and decision in case number 19F-H1919044-REL, wherein the Pointe Tapatio Community Association petitioned against residents Lanye C. and Devin E. Wilkey for violating community covenants. The Administrative Law Judge (ALJ) found conclusively in favor of the petitioner, determining that the Wilkeys were operating a business from their residential unit in direct violation of the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The core of the violation centered on CC&R Article 3, Section 3.1, which prohibits any non-residential use that “creates traffic [or] parking.” The Wilkeys acknowledged that two employees of their payroll processing company, Devau Human Resources, regularly commuted to and worked from the unit, thereby creating both traffic and parking. This admission was sufficient to establish a clear and unambiguous breach of the covenant.

The respondents’ primary defense—that they had received verbal permission from a former property manager in 2009—was found to be unsubstantiated and insufficient. The ALJ ordered the Wilkeys to cease all business operations at the residence within 35 days and to pay a civil penalty of $500.00 to the Department of Real Estate within 60 days.

Case Overview

Case Number

19F-H1919044-REL

Petitioner

Pointe Tapatio Community Association

Respondents

Lanye C. Wilkey and Devin E. Wilkey

Hearing Date

April 26, 2019

Decision Date

May 7, 2019

Presiding Judge

Thomas Shedden, Administrative Law Judge

Location

Office of Administrative Hearings, Phoenix, Arizona

Allegation and Governing Rule

The Pointe Tapatio Community Association (Petitioner) alleged that Lanye C. Wilkey and Devin E. Wilkey (Respondents) were in violation of the community’s CC&Rs by using their property at 720 E. North Lane, Unit 1, as an office for their business, rather than exclusively as a residence.

The specific rule cited was CC&Rs Article 3, Section 3.1, which states:

“Residential. Each Residence shall be used, improved, and devoted exclusively to first class residential use, and no gainful occupation, profession, trade, business, religion, or other non-residential use which creates traffic [or] parking … shall be conducted from any Residence [or part thereof.]”

The association requested an order for the Wilkeys to abide by the CC&Rs, the imposition of a civil penalty, and a refund of its filing fee.

Key Findings of Fact

The Business Operation

• Business Entity: The Wilkeys, who are mother and son, co-own and operate Devau Human Resources, a payroll processing company. The business had previously operated from a commercial location before moving to the residential unit in late 2009.

• On-Site Employees: The Wilkeys acknowledged that two employees of Devau Human Resources drive to the unit to work.

◦ One employee works Monday through Thursday, from 9:30 a.m. to 4:00 p.m.

◦ A second employee works Monday through Friday, from 9:30 a.m. to 5:00 p.m.

• Parking and Traffic: It was established that these employees at times park on the community’s streets, thereby creating both traffic and parking related to the business.

• Public Presence: Devau Human Resources’ website lists the E. North Lane address (as a mailing address only) and advertises office hours of 9:00 a.m. to 5:00 p.m., Monday through Friday. Google Maps also shows the business operating from this address.

• Admissions: Ms. Wilkey acknowledged during testimony that they consider the unit to be an office.

• Client Contact: The business does not have clients or customers come to the unit. Mail for the business is received at the unit.

The Respondents’ Defense

• Claim of Permission: The Wilkeys asserted that they received permission to move the business into the unit in 2009 from the property manager at the time, Howard Flisser.

• Lack of Evidence: The respondents acknowledged they had no written confirmation of this permission. Their belief was based on second- and third-hand information.

◦ Ms. Wilkey testified that she asked her husband (since deceased) if they could operate from the unit, who then asked a salesperson, who in turn allegedly asked Mr. Flisser and relayed that it was permissible.

◦ Mr. Wilkey testified that he believed they had permission because his father would not have taken the risk of moving the business without it.

• Claim of Residency: Mr. Wilkey testified that he considers the unit to be one of his two primary residences. However, when asked by attorneys for both parties how often he stayed there, he did not provide a responsive answer.

The Association’s Rebuttal and Position

• Timeline of Action: The Association sent a letter to the Wilkeys on August 8, 2018, informing them they were out of compliance and must cease business operations by August 31, 2018. The official petition was filed with the Department of Real Estate on January 17, 2019.

• Manager’s Testimony: Association board member Paula Duistermars testified that she and the association’s attorney had spoken to Howard Flisser a few days before the hearing. In that conversation, Mr. Flisser stated he could not recall giving permission and had volunteered twice that he “never gave permission for Devau to operate out of the unit.”

• Manager’s Authority: Ms. Duistermars also testified that Mr. Flisser, as property manager, did not have the authority to grant such permission; only the Association’s Board could do so.

• Permitted Businesses: The Association does allow certain home-based businesses that do not generate traffic or parking, such as telecommuting and teaching online classes. These do not require explicit Board permission.

• Origin of Complaint: The Board became aware of the Wilkeys’ business operation when another resident brought the issue to its attention. Ms. Duistermars was unaware of any specific complaints filed against the Wilkeys regarding traffic, parking, or noise.

Conclusions of Law and Rationale

The ALJ’s decision was based on the standard of a “preponderance of the evidence.” The core legal conclusions were as follows:

1. CC&Rs as a Binding Contract: The CC&Rs constitute a contract between the parties, and its terms must be complied with.

2. Unambiguous Language: The language in Article 3, Section 3.1 is clear and unambiguous. It is therefore enforced to give effect to the intent of the parties.

3. Violation Established: The preponderance of evidence demonstrated that the Wilkeys were operating a business from their unit. The Wilkeys’ own admission that two employees drive to and park at the unit to conduct business was sufficient to prove that their business “is creating both traffic and parking.”

4. Violation is Absolute: The ALJ noted there is no requirement in the CC&Rs that the traffic or parking must cause a separate violation or complaint. The mere fact that the business creates traffic and parking is sufficient to trigger the prohibition.

5. Finding of Violation: Based on the evidence, the Wilkeys are in violation of CC&R Article 3, Section 3.1.

6. Penalty Authority: Under ARIZ. REV. STAT. § 32-2199.02, the ALJ has the authority to order compliance and levy a civil penalty. A penalty of $500.00 was deemed appropriate given the unambiguous nature of the violation.

7. Filing Fee Denial: The Association’s request for a refund of its filing fee was denied, as it cited no authority showing this was within the tribunal’s power.

Final Order

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued the following orders to Respondents Layne C. Wilkey and Devin E. Wilkey:

• Cease Business Operations: Within thirty-five (35) days of the effective date of the Order, the Respondents must comply with CC&R Article 3, section 3.1 by ceasing business operations at 720 E. North Lane, Unit 1 (Lot 50), Phoenix, Arizona.

• Pay Civil Penalty: Within sixty (60) days of the effective date of the Order, the Respondents must pay a civil penalty of $500.00 to the Department of Real Estate.

• Rehearing Notice: This order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the Order.


William P Lee v vs. Greenlaw Townhouses Unit Two

Posted on by

Case Summary

Case ID 19F-H1918019-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-04-22
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William P. Lee Counsel —
Respondent Greenlaw Townhouses Unit Two Counsel Timothy D. Butterfield, Esq.

Alleged Violations

A.R.S. §§ 33-1803 and 1809; CC&Rs Amendments 1, 2, and 3; Greenlaw Rules and Regulations

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to establish by a preponderance of the evidence that the HOA violated the cited governing documents (CC&Rs/Rules) or state statutes (A.R.S. §§ 33-1803 and 1809) by banning street parking and contracting for vehicle booting/towing.

Why this result: Petitioner failed to meet the burden of proof regarding violations of CC&Rs Amendments 1, 2, and 3, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. The ALJ found the July 2018 revised Rules, which banned parking, were controlling.

Key Issues & Findings

Violation regarding banning parking and use of towing/booting company.

Petitioner alleged the HOA improperly banned street parking and contracted with a towing/booting company, arguing this violated specific CC&R amendments, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. He also claimed the 2018 revised Rules were invalid due to improper electronic notice instead of personal delivery or mail.

Orders: Petitioners’ petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1809

Analytics Highlights

Topics: Parking, CC&Rs, Rules and Regulations, Notice, Towing, Booting, A.R.S. 33-1803, A.R.S. 33-1809
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 33-1809
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • 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

19F-H1918019-REL-RHG Decision – 703187.pdf

Uploaded 2025-10-09T03:33:39 (110.8 KB)





Briefing Doc – 19F-H1918019-REL-RHG


Administrative Hearing Briefing: William P. Lee v. Greenlaw Townhouses Unit Two

Executive Summary

This document analyzes the Administrative Law Judge Decision in case No. 19F-H1918019-REL-RHG, where Petitioner William P. Lee’s complaint against the Greenlaw Townhouses Unit Two Homeowners Association (Greenlaw) was denied. Mr. Lee, a homeowner, alleged that Greenlaw’s complete ban on street parking and its contract with a towing company to enforce the ban violated the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The Administrative Law Judge (ALJ) found that Mr. Lee failed to meet the required burden of proof. The central conclusion was that Greenlaw’s revised Rules and Regulations, effective July 2018, are the controlling authority and explicitly permit a total ban on street parking. The ALJ determined that the specific parking prohibitions detailed in the CC&R amendments—concerning fire lanes, snow removal, and abandoned vehicles—do not preclude the association from enacting a more comprehensive ban via its rules. Furthermore, the petitioner failed to provide sufficient evidence that Greenlaw had actually taken the alleged enforcement actions (booting or towing) against any member’s vehicle.

Case Overview

Detail

Information

Case Name

William P. Lee v. Greenlaw Townhouses Unit Two

Case Number

19F-H1918019-REL-RHG

Arizona Office of Administrative Hearings

Petitioner

William P. Lee (Homeowner)

Respondent

Greenlaw Townhouses Unit Two (Homeowners Association)

Hearing Date

April 1, 2019 (Rehearing)

Decision Date

April 22, 2019

Final Order

Petitioner’s petition is denied.

Presiding ALJ

Velva Moses-Thompson

Petitioner’s Core Allegations and Arguments

William P. Lee’s petition, filed on September 12, 2018, centered on the claim that Greenlaw acted outside its authority by banning all street parking and contracting with a towing company for enforcement. His arguments were:

• Violation of CC&Rs: The total parking ban directly contradicted CC&R Amendments 1, 2, and 3. Mr. Lee contended these amendments established an exhaustive list of permissible parking restrictions, limited to:

◦ Designated fire lanes (Amendment #1).

◦ Periods of snow removal (Amendment #2).

◦ Vehicles in an obvious state of disrepair for over 72 hours (Amendment #3).

• Invalidity of Revised Rules: Mr. Lee argued that the July 2018 revised Rules and Regulations, which contain the parking ban, were not valid or controlling due to improper notification.

◦ He contended that Greenlaw’s Bylaws (Article V, Section 1) required that such notices be delivered personally or by postal mail.

◦ He received notice only via a July 6, 2018 email, which he claimed did not clearly indicate that the rules had been substantively changed.

• Improper Motive: Mr. Lee contended that “the only reason that the Association banned parking was to please Barbara, a board member who did not want anyone to park behind her property.”

Respondent’s Defense

Greenlaw Townhouses Unit Two asserted that its actions were proper and within the scope of its authority as an HOA. Its defense included the following points:

• Controlling Authority: Greenlaw maintained that its revised Rules and Regulations, effective July 2018, were the controlling documents governing parking.

• Notice Protocol: The association contended that the Bylaw provision requiring personal or postal mail notice applies only to notices mandated by statute or the CC&Rs. Greenlaw argued there is no such requirement for providing notice of amendments to the Rules and Regulations.

• Sufficient Notice: Greenlaw asserted that Mr. Lee received actual notice of the revised rules via the email sent on July 6, 2018.

Analysis of Key Governing Documents

The case revolved around the interpretation of and interplay between several of Greenlaw’s governing documents.

Document

Key Provision / Content

Relevance to Case

CC&R Amendments 1, 2, & 3

These amendments, added to Article II (Permitted Uses), establish specific, conditional parking prohibitions related to fire lanes, snow removal, and abandoned vehicles.

The petitioner argued these amendments represented the only circumstances under which parking could be banned. The ALJ found they were not an exhaustive list.

Bylaws, Article V, Section 1

“Notices to directors and lot owners shall be in writing and delivered personally or mailed to the directors or lot owners at their addresses appearing on the books of the corporation.”

The petitioner cited this to argue that the email notice for the revised rules was improper, thus invalidating the rules. The ALJ sided with the Respondent’s interpretation.

Rules and Regulations (July 2018), Section 8

“Parking is not allowed on any association street or alleyway at any time… cars parked in violation may be booted and/or towed by a contracted independent towing company.” The rule specifies that the streets (Eva, Heidi, Jeffrey Loops) are private and owned by the HOA.

This document contains the explicit, total parking ban at the heart of the dispute. The ALJ found this rule to be the valid and controlling authority.

Administrative Law Judge’s Findings and Conclusions

The ALJ’s decision was based on a comprehensive review of the evidence and legal standards, ultimately concluding that the petitioner failed to prove his case.

Burden of Proof

The decision established that Mr. Lee bore the burden of proof “to establish that Greenlaw violated amendments 1, 2, and 3 of the CC&Rs, and the Greenlaw Rules and Regulations by a preponderance of the evidence.” A preponderance of the evidence is defined as proof that convinces the trier of fact a contention is “more probably true than not.”

Key Conclusions of Law

1. Validity of the 2018 Rules: The ALJ concluded that “the weight of the evidence presented at hearing shows that Greenlaw’s Rules and Regulations were revised effective July 2018 and are the controlling Rules and Regulations of Greenlaw.” Mr. Lee failed to establish that any prior version remained in effect.

2. Scope of CC&R Amendments: The decision found that the CC&R amendments only “provide specific scenarios in which parking on the streets is banned.” They do not restrict the association from implementing a broader ban through its Rules and Regulations. Therefore, the total ban did not violate the CC&Rs.

3. No Violation of Rules: Because the July 2018 rules were found to be controlling, and they explicitly authorize a total parking ban, the ALJ concluded that Greenlaw’s decision did not violate its own Rules and Regulations.

4. Insufficient Evidence of Enforcement: A critical failure in the petitioner’s case was the lack of evidence.

◦ The decision notes, “Mr. Lee provided no evidence that Greenlaw booted or towed any of the vehicles belonging to Greenlaw members.”

◦ His testimony about observing a booted jeep was dismissed as insufficient, as he “did not know who owned the jeep, nor who was responsible for booting the jeep.” The Greenlaw manager’s subsequent comment was not found to be an admission of responsibility.

◦ Mr. Lee did not allege that any of his own vehicles had been booted or towed.

5. No Statutory Violation: The judge found that Mr. Lee failed to establish any violation of Arizona Revised Statutes §§ 33-1803 and 33-1809.

Final Order and Implications

Based on these findings, the Administrative Law Judge issued a final, binding order.

• Order: “IT IS ORDERED that Petitioners’ petition is denied.”

• Appeal Process: As the order resulted from a rehearing, it is binding on the parties. Any party wishing to appeal must seek judicial review in the superior court within thirty-five days from the date the order was served.


William P Lee v vs. Greenlaw Townhouses Unit Two

Posted on by

Case Summary

Case ID 19F-H1918019-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-04-22
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William P. Lee Counsel —
Respondent Greenlaw Townhouses Unit Two Counsel Timothy D. Butterfield, Esq.

Alleged Violations

A.R.S. §§ 33-1803 and 1809; CC&Rs Amendments 1, 2, and 3; Greenlaw Rules and Regulations

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to establish by a preponderance of the evidence that the HOA violated the cited governing documents (CC&Rs/Rules) or state statutes (A.R.S. §§ 33-1803 and 1809) by banning street parking and contracting for vehicle booting/towing.

Why this result: Petitioner failed to meet the burden of proof regarding violations of CC&Rs Amendments 1, 2, and 3, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. The ALJ found the July 2018 revised Rules, which banned parking, were controlling.

Key Issues & Findings

Violation regarding banning parking and use of towing/booting company.

Petitioner alleged the HOA improperly banned street parking and contracted with a towing/booting company, arguing this violated specific CC&R amendments, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. He also claimed the 2018 revised Rules were invalid due to improper electronic notice instead of personal delivery or mail.

Orders: Petitioners’ petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1809

Analytics Highlights

Topics: Parking, CC&Rs, Rules and Regulations, Notice, Towing, Booting, A.R.S. 33-1803, A.R.S. 33-1809
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 33-1809
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • 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

19F-H1918019-REL-RHG Decision – 703187.pdf

Uploaded 2025-10-08T07:07:43 (110.8 KB)





Briefing Doc – 19F-H1918019-REL-RHG


Administrative Hearing Briefing: William P. Lee v. Greenlaw Townhouses Unit Two

Executive Summary

This document analyzes the Administrative Law Judge Decision in case No. 19F-H1918019-REL-RHG, where Petitioner William P. Lee’s complaint against the Greenlaw Townhouses Unit Two Homeowners Association (Greenlaw) was denied. Mr. Lee, a homeowner, alleged that Greenlaw’s complete ban on street parking and its contract with a towing company to enforce the ban violated the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The Administrative Law Judge (ALJ) found that Mr. Lee failed to meet the required burden of proof. The central conclusion was that Greenlaw’s revised Rules and Regulations, effective July 2018, are the controlling authority and explicitly permit a total ban on street parking. The ALJ determined that the specific parking prohibitions detailed in the CC&R amendments—concerning fire lanes, snow removal, and abandoned vehicles—do not preclude the association from enacting a more comprehensive ban via its rules. Furthermore, the petitioner failed to provide sufficient evidence that Greenlaw had actually taken the alleged enforcement actions (booting or towing) against any member’s vehicle.

Case Overview

Detail

Information

Case Name

William P. Lee v. Greenlaw Townhouses Unit Two

Case Number

19F-H1918019-REL-RHG

Arizona Office of Administrative Hearings

Petitioner

William P. Lee (Homeowner)

Respondent

Greenlaw Townhouses Unit Two (Homeowners Association)

Hearing Date

April 1, 2019 (Rehearing)

Decision Date

April 22, 2019

Final Order

Petitioner’s petition is denied.

Presiding ALJ

Velva Moses-Thompson

Petitioner’s Core Allegations and Arguments

William P. Lee’s petition, filed on September 12, 2018, centered on the claim that Greenlaw acted outside its authority by banning all street parking and contracting with a towing company for enforcement. His arguments were:

• Violation of CC&Rs: The total parking ban directly contradicted CC&R Amendments 1, 2, and 3. Mr. Lee contended these amendments established an exhaustive list of permissible parking restrictions, limited to:

◦ Designated fire lanes (Amendment #1).

◦ Periods of snow removal (Amendment #2).

◦ Vehicles in an obvious state of disrepair for over 72 hours (Amendment #3).

• Invalidity of Revised Rules: Mr. Lee argued that the July 2018 revised Rules and Regulations, which contain the parking ban, were not valid or controlling due to improper notification.

◦ He contended that Greenlaw’s Bylaws (Article V, Section 1) required that such notices be delivered personally or by postal mail.

◦ He received notice only via a July 6, 2018 email, which he claimed did not clearly indicate that the rules had been substantively changed.

• Improper Motive: Mr. Lee contended that “the only reason that the Association banned parking was to please Barbara, a board member who did not want anyone to park behind her property.”

Respondent’s Defense

Greenlaw Townhouses Unit Two asserted that its actions were proper and within the scope of its authority as an HOA. Its defense included the following points:

• Controlling Authority: Greenlaw maintained that its revised Rules and Regulations, effective July 2018, were the controlling documents governing parking.

• Notice Protocol: The association contended that the Bylaw provision requiring personal or postal mail notice applies only to notices mandated by statute or the CC&Rs. Greenlaw argued there is no such requirement for providing notice of amendments to the Rules and Regulations.

• Sufficient Notice: Greenlaw asserted that Mr. Lee received actual notice of the revised rules via the email sent on July 6, 2018.

Analysis of Key Governing Documents

The case revolved around the interpretation of and interplay between several of Greenlaw’s governing documents.

Document

Key Provision / Content

Relevance to Case

CC&R Amendments 1, 2, & 3

These amendments, added to Article II (Permitted Uses), establish specific, conditional parking prohibitions related to fire lanes, snow removal, and abandoned vehicles.

The petitioner argued these amendments represented the only circumstances under which parking could be banned. The ALJ found they were not an exhaustive list.

Bylaws, Article V, Section 1

“Notices to directors and lot owners shall be in writing and delivered personally or mailed to the directors or lot owners at their addresses appearing on the books of the corporation.”

The petitioner cited this to argue that the email notice for the revised rules was improper, thus invalidating the rules. The ALJ sided with the Respondent’s interpretation.

Rules and Regulations (July 2018), Section 8

“Parking is not allowed on any association street or alleyway at any time… cars parked in violation may be booted and/or towed by a contracted independent towing company.” The rule specifies that the streets (Eva, Heidi, Jeffrey Loops) are private and owned by the HOA.

This document contains the explicit, total parking ban at the heart of the dispute. The ALJ found this rule to be the valid and controlling authority.

Administrative Law Judge’s Findings and Conclusions

The ALJ’s decision was based on a comprehensive review of the evidence and legal standards, ultimately concluding that the petitioner failed to prove his case.

Burden of Proof

The decision established that Mr. Lee bore the burden of proof “to establish that Greenlaw violated amendments 1, 2, and 3 of the CC&Rs, and the Greenlaw Rules and Regulations by a preponderance of the evidence.” A preponderance of the evidence is defined as proof that convinces the trier of fact a contention is “more probably true than not.”

Key Conclusions of Law

1. Validity of the 2018 Rules: The ALJ concluded that “the weight of the evidence presented at hearing shows that Greenlaw’s Rules and Regulations were revised effective July 2018 and are the controlling Rules and Regulations of Greenlaw.” Mr. Lee failed to establish that any prior version remained in effect.

2. Scope of CC&R Amendments: The decision found that the CC&R amendments only “provide specific scenarios in which parking on the streets is banned.” They do not restrict the association from implementing a broader ban through its Rules and Regulations. Therefore, the total ban did not violate the CC&Rs.

3. No Violation of Rules: Because the July 2018 rules were found to be controlling, and they explicitly authorize a total parking ban, the ALJ concluded that Greenlaw’s decision did not violate its own Rules and Regulations.

4. Insufficient Evidence of Enforcement: A critical failure in the petitioner’s case was the lack of evidence.

◦ The decision notes, “Mr. Lee provided no evidence that Greenlaw booted or towed any of the vehicles belonging to Greenlaw members.”

◦ His testimony about observing a booted jeep was dismissed as insufficient, as he “did not know who owned the jeep, nor who was responsible for booting the jeep.” The Greenlaw manager’s subsequent comment was not found to be an admission of responsibility.

◦ Mr. Lee did not allege that any of his own vehicles had been booted or towed.

5. No Statutory Violation: The judge found that Mr. Lee failed to establish any violation of Arizona Revised Statutes §§ 33-1803 and 33-1809.

Final Order and Implications

Based on these findings, the Administrative Law Judge issued a final, binding order.

• Order: “IT IS ORDERED that Petitioners’ petition is denied.”

• Appeal Process: As the order resulted from a rehearing, it is binding on the parties. Any party wishing to appeal must seek judicial review in the superior court within thirty-five days from the date the order was served.


N. Wayne Dwight, Jr. vs.

Posted on by

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)





Briefing Doc – 19F-H1918027-REL


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 by

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)





Briefing Doc – 19F-H1918027-REL


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.


William P Lee vs. Greenlaw Townhouses Unit Two Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918019-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-04-22
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William P. Lee Counsel —
Respondent Greenlaw Townhouses Unit Two Counsel Timothy D. Butterfield, Esq.

Alleged Violations

A.R.S. §§ 33-1803 and 1809; CC&Rs Amendments 1, 2, and 3; Greenlaw Rules and Regulations

Outcome Summary

The Administrative Law Judge denied the petition, finding that the Petitioner failed to establish by a preponderance of the evidence that the HOA violated the cited governing documents (CC&Rs/Rules) or state statutes (A.R.S. §§ 33-1803 and 1809) by banning street parking and contracting for vehicle booting/towing.

Why this result: Petitioner failed to meet the burden of proof regarding violations of CC&Rs Amendments 1, 2, and 3, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. The ALJ found the July 2018 revised Rules, which banned parking, were controlling.

Key Issues & Findings

Violation regarding banning parking and use of towing/booting company.

Petitioner alleged the HOA improperly banned street parking and contracted with a towing/booting company, arguing this violated specific CC&R amendments, the Rules and Regulations, and A.R.S. §§ 33-1803 and 1809. He also claimed the 2018 revised Rules were invalid due to improper electronic notice instead of personal delivery or mail.

Orders: Petitioners’ petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1803
  • A.R.S. § 33-1809

Analytics Highlights

Topics: Parking, CC&Rs, Rules and Regulations, Notice, Towing, Booting, A.R.S. 33-1803, A.R.S. 33-1809
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 33-1809
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • 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

19F-H1918019-REL Decision – 703187.pdf

Uploaded 2025-10-09T03:33:37 (110.8 KB)





Briefing Doc – 19F-H1918019-REL


Administrative Hearing Briefing: William P. Lee v. Greenlaw Townhouses Unit Two

Executive Summary

This document analyzes the Administrative Law Judge Decision in case No. 19F-H1918019-REL-RHG, where Petitioner William P. Lee’s complaint against the Greenlaw Townhouses Unit Two Homeowners Association (Greenlaw) was denied. Mr. Lee, a homeowner, alleged that Greenlaw’s complete ban on street parking and its contract with a towing company to enforce the ban violated the association’s Covenants, Conditions, and Restrictions (CC&Rs).

The Administrative Law Judge (ALJ) found that Mr. Lee failed to meet the required burden of proof. The central conclusion was that Greenlaw’s revised Rules and Regulations, effective July 2018, are the controlling authority and explicitly permit a total ban on street parking. The ALJ determined that the specific parking prohibitions detailed in the CC&R amendments—concerning fire lanes, snow removal, and abandoned vehicles—do not preclude the association from enacting a more comprehensive ban via its rules. Furthermore, the petitioner failed to provide sufficient evidence that Greenlaw had actually taken the alleged enforcement actions (booting or towing) against any member’s vehicle.

Case Overview

Detail

Information

Case Name

William P. Lee v. Greenlaw Townhouses Unit Two

Case Number

19F-H1918019-REL-RHG

Arizona Office of Administrative Hearings

Petitioner

William P. Lee (Homeowner)

Respondent

Greenlaw Townhouses Unit Two (Homeowners Association)

Hearing Date

April 1, 2019 (Rehearing)

Decision Date

April 22, 2019

Final Order

Petitioner’s petition is denied.

Presiding ALJ

Velva Moses-Thompson

Petitioner’s Core Allegations and Arguments

William P. Lee’s petition, filed on September 12, 2018, centered on the claim that Greenlaw acted outside its authority by banning all street parking and contracting with a towing company for enforcement. His arguments were:

• Violation of CC&Rs: The total parking ban directly contradicted CC&R Amendments 1, 2, and 3. Mr. Lee contended these amendments established an exhaustive list of permissible parking restrictions, limited to:

◦ Designated fire lanes (Amendment #1).

◦ Periods of snow removal (Amendment #2).

◦ Vehicles in an obvious state of disrepair for over 72 hours (Amendment #3).

• Invalidity of Revised Rules: Mr. Lee argued that the July 2018 revised Rules and Regulations, which contain the parking ban, were not valid or controlling due to improper notification.

◦ He contended that Greenlaw’s Bylaws (Article V, Section 1) required that such notices be delivered personally or by postal mail.

◦ He received notice only via a July 6, 2018 email, which he claimed did not clearly indicate that the rules had been substantively changed.

• Improper Motive: Mr. Lee contended that “the only reason that the Association banned parking was to please Barbara, a board member who did not want anyone to park behind her property.”

Respondent’s Defense

Greenlaw Townhouses Unit Two asserted that its actions were proper and within the scope of its authority as an HOA. Its defense included the following points:

• Controlling Authority: Greenlaw maintained that its revised Rules and Regulations, effective July 2018, were the controlling documents governing parking.

• Notice Protocol: The association contended that the Bylaw provision requiring personal or postal mail notice applies only to notices mandated by statute or the CC&Rs. Greenlaw argued there is no such requirement for providing notice of amendments to the Rules and Regulations.

• Sufficient Notice: Greenlaw asserted that Mr. Lee received actual notice of the revised rules via the email sent on July 6, 2018.

Analysis of Key Governing Documents

The case revolved around the interpretation of and interplay between several of Greenlaw’s governing documents.

Document

Key Provision / Content

Relevance to Case

CC&R Amendments 1, 2, & 3

These amendments, added to Article II (Permitted Uses), establish specific, conditional parking prohibitions related to fire lanes, snow removal, and abandoned vehicles.

The petitioner argued these amendments represented the only circumstances under which parking could be banned. The ALJ found they were not an exhaustive list.

Bylaws, Article V, Section 1

“Notices to directors and lot owners shall be in writing and delivered personally or mailed to the directors or lot owners at their addresses appearing on the books of the corporation.”

The petitioner cited this to argue that the email notice for the revised rules was improper, thus invalidating the rules. The ALJ sided with the Respondent’s interpretation.

Rules and Regulations (July 2018), Section 8

“Parking is not allowed on any association street or alleyway at any time… cars parked in violation may be booted and/or towed by a contracted independent towing company.” The rule specifies that the streets (Eva, Heidi, Jeffrey Loops) are private and owned by the HOA.

This document contains the explicit, total parking ban at the heart of the dispute. The ALJ found this rule to be the valid and controlling authority.

Administrative Law Judge’s Findings and Conclusions

The ALJ’s decision was based on a comprehensive review of the evidence and legal standards, ultimately concluding that the petitioner failed to prove his case.

Burden of Proof

The decision established that Mr. Lee bore the burden of proof “to establish that Greenlaw violated amendments 1, 2, and 3 of the CC&Rs, and the Greenlaw Rules and Regulations by a preponderance of the evidence.” A preponderance of the evidence is defined as proof that convinces the trier of fact a contention is “more probably true than not.”

Key Conclusions of Law

1. Validity of the 2018 Rules: The ALJ concluded that “the weight of the evidence presented at hearing shows that Greenlaw’s Rules and Regulations were revised effective July 2018 and are the controlling Rules and Regulations of Greenlaw.” Mr. Lee failed to establish that any prior version remained in effect.

2. Scope of CC&R Amendments: The decision found that the CC&R amendments only “provide specific scenarios in which parking on the streets is banned.” They do not restrict the association from implementing a broader ban through its Rules and Regulations. Therefore, the total ban did not violate the CC&Rs.

3. No Violation of Rules: Because the July 2018 rules were found to be controlling, and they explicitly authorize a total parking ban, the ALJ concluded that Greenlaw’s decision did not violate its own Rules and Regulations.

4. Insufficient Evidence of Enforcement: A critical failure in the petitioner’s case was the lack of evidence.

◦ The decision notes, “Mr. Lee provided no evidence that Greenlaw booted or towed any of the vehicles belonging to Greenlaw members.”

◦ His testimony about observing a booted jeep was dismissed as insufficient, as he “did not know who owned the jeep, nor who was responsible for booting the jeep.” The Greenlaw manager’s subsequent comment was not found to be an admission of responsibility.

◦ Mr. Lee did not allege that any of his own vehicles had been booted or towed.

5. No Statutory Violation: The judge found that Mr. Lee failed to establish any violation of Arizona Revised Statutes §§ 33-1803 and 33-1809.

Final Order and Implications

Based on these findings, the Administrative Law Judge issued a final, binding order.

• Order: “IT IS ORDERED that Petitioners’ petition is denied.”

• Appeal Process: As the order resulted from a rehearing, it is binding on the parties. Any party wishing to appeal must seek judicial review in the superior court within thirty-five days from the date the order was served.