Tag Archives: Rehearing

Rogelio A. Garcia vs. Villagio at Tempe Homeowners

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Case Summary

Case ID 19F-H1918009-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-03-04
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rogelio A. Garcia Counsel —
Respondent Villagio at Tempe Homeowners Association Counsel Nathan Tennyson

Alleged Violations

ARIZ. REV. STAT. section 33-1242

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that Petitioner Rogelio A. Garcia failed to prove by a preponderance of the evidence that Respondent Villagio at Tempe Homeowners Association violated ARIZ. REV. STAT. section 33-1242 regarding procedures for notices of violation. Respondent was deemed the prevailing party.

Why this result: Petitioner failed to meet his burden of proof. The HOA was not required to provide the requested information because Petitioner did not respond by certified mail within 21 calendar days. The HOA also provided the process for contesting the notice, negating the requirement to inform the Petitioner of the option to petition for an administrative hearing.

Key Issues & Findings

Alleged violation of statutory notice requirements for property violations.

Petitioner Rogelio A. Garcia alleged that Respondent Villagio at Tempe Homeowners Association violated A.R.S. § 33-1242. The ALJ found that because Mr. Garcia did not submit a written response by certified mail within twenty-one days, Villagio was not required to provide the information required under A.R.S. § 33-1242(C), such as the observer's name. Since Villagio notified Mr. Garcia of the appeal process in the notices, they were not required to provide notice of the right to petition for an administrative hearing.

Orders: Mr. Garcia’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. section 33-1242
  • ARIZ. REV. STAT. section 32-2199.01
  • ARIZ. REV. STAT. section 32-2199.02

Analytics Highlights

Topics: HOA, Statute Violation, Notice Procedure, A.R.S. 33-1242, Rehearing
Additional Citations:

  • ARIZ. REV. STAT. section 33-1242
  • ARIZ. REV. STAT. section 32-2199.01
  • ARIZ. REV. STAT. section 32-2199.02
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119

Audio Overview

Decision Documents

19F-H1918009-REL-RHG Decision – 692638.pdf

Uploaded 2025-10-08T07:07:03 (89.4 KB)





Briefing Doc – 19F-H1918009-REL-RHG


Administrative Hearing Brief: Garcia v. Villagio at Tempe Homeowners Association

Executive Summary

This document synthesizes the findings from two administrative law hearings concerning a dispute between homeowner Rogelio A. Garcia (Petitioner) and the Villagio at Tempe Homeowners Association (Respondent). The core of the dispute was Mr. Garcia’s allegation that the HOA violated Arizona Revised Statute (A.R.S.) § 33-1242 in its handling of a violation notice for an improper short-term rental.

The Administrative Law Judge (ALJ) dismissed Mr. Garcia’s petition in both an initial hearing on October 30, 2018, and a subsequent rehearing on February 12, 2019. The rulings consistently found that Mr. Garcia failed to meet his burden of proof.

The central conclusion of the ALJ was that the statutory protections Mr. Garcia claimed he was denied under A.R.S. § 33-1242 are contingent upon the homeowner first taking a specific action: responding to a violation notice in writing via certified mail within 21 calendar days. It was undisputed in both hearings that Mr. Garcia did not take this step. Consequently, the HOA’s statutory obligations to provide the name of the violation’s observer and other specific information were never triggered. Furthermore, because the HOA’s violation notices included instructions for its own internal appeal process, it was not required by statute to inform Mr. Garcia of his option to petition for a separate administrative hearing.

Case Background and Chronology

The case centers on a series of violation notices sent by the Villagio at Tempe Homeowners Association to unit owner Rogelio A. Garcia concerning the use of his property. Mr. Garcia subsequently petitioned the Arizona Department of Real Estate, alleging procedural violations by the HOA.

March 8, 2018

Villagio sends Mr. Garcia a letter alleging his unit is being rented in violation of short-term lease provisions in the CC&Rs.

March 22, 2018

Villagio sends a second notice, indicating a $1,000 fine has been posted to Mr. Garcia’s account for the ongoing violation.

April 5, 2018

Villagio sends a third notice, indicating a $2,000 fine has been posted to his account.

August 17, 2018

Mr. Garcia files a petition with the Arizona Department of Real Estate alleging Villagio violated A.R.S. § 33-1242.

October 30, 2018

The initial evidentiary hearing is held before Administrative Law Judge Velva Moses-Thompson.

November 19, 2018

The ALJ issues a decision dismissing Mr. Garcia’s petition.

January 3, 2019

The Arizona Department of Real Estate issues an order for a rehearing of the matter at Mr. Garcia’s request.

February 12, 2019

A rehearing is held, with testimony from Mr. Garcia and Tom Gordon, Villagio’s Community Manager.

March 4, 2019

The ALJ issues a final decision, again dismissing Mr. Garcia’s petition and affirming Villagio as the prevailing party. The order is made binding on the parties.

Petitioner’s Arguments (Rogelio A. Garcia)

Across both hearings, Mr. Garcia maintained that Villagio violated the procedural requirements of A.R.S. § 33-1242. His specific arguments included:

• Failure to Provide Observer’s Name: Villagio did not provide the first and last name of the person or persons who observed the alleged short-term rental violation.

• Denial of Administrative Hearing Notice: The HOA failed to provide written notice of his option to petition for an administrative hearing with the state real estate department.

• Denial of Response Opportunity: Mr. Garcia contended that Villagio effectively prevented him from responding via certified mail within the 21-day statutory window. He based this claim on two points:

◦ The HOA issued a second notice and a fine only 14 days after the first notice, creating confusion and pressure that precluded a 21-day response.

◦ The notices included the phrase, “Please bring this issue into compliance within 10 days of this notice,” which he interpreted as the operative deadline, superseding the 21-day statutory period.

• In his petition, he stated the violation letter “did not allow for home owner to respond to violation by certified letter within 21 calendar days after the date of the notice.”

Respondent’s Arguments (Villagio at Tempe HOA)

Villagio’s defense, presented by Nathan Tennyson, Esq., centered on a direct interpretation of the statute and Mr. Garcia’s failure to adhere to its requirements.

• Petitioner’s Inaction as the Decisive Factor: Villagio’s primary argument was that Mr. Garcia never took the necessary step to trigger the protections of A.R.S. § 33-1242(C). The statute requires the homeowner to first send a written response via certified mail within 21 days. As Mr. Garcia did not do this, Villagio was under no obligation to provide the observer’s name or the other detailed information outlined in that subsection.

• Sufficiency of Internal Appeal Process: The HOA argued it was exempt from the requirement to provide notice of an administrative hearing because its violation letters fulfilled the statute’s alternative. The letters provided a clear process for contesting the notice, directing Mr. Garcia to a website (http://www.hoacompliance.com/Apoeals) to file an appeal with the Board of Directors.

• Statutory Inapplicability (Argument from Rehearing): During the rehearing, Villagio introduced a new argument that A.R.S. § 33-1242 was not applicable to the dispute at all. They contended the statute addresses violations related to the condition of a property, whereas Mr. Garcia’s violation was a matter of property use (i.e., short-term renting).

• No Prevention of Response: Villagio’s community manager, Tom Gordon, testified that the HOA does not restrict homeowners from responding to notices within the 21-day period. Mr. Garcia also admitted under cross-examination that no court order had prohibited him from sending a response.

Administrative Law Judge’s Findings and Rulings

The Administrative Law Judge (ALJ) sided with the Respondent in both decisions, dismissing the petition based on a strict interpretation of the law and the evidence presented.

Burden of Proof

The ALJ established in both rulings that Mr. Garcia, as the petitioner, bore the burden of proving the alleged violation by a “preponderance of the evidence.” This standard requires evidence that is of greater weight or more convincing than the evidence offered in opposition to it.

Interpretation and Application of A.R.S. § 33-1242

The decisions hinged on a procedural reading of the statute:

1. Response Requirement is a Prerequisite: The ALJ found that the obligations for an HOA under subsection (C) of the statute—including providing the observer’s name, the date of the violation, and the specific rule violated—are expressly conditioned on the unit owner first providing a written response via certified mail within 21 days as stipulated in subsection (B).

2. Internal Appeal Process Satisfies Notice Requirement: The ALJ concluded that under subsection (D), an HOA is only required to provide notice of the option for a state administrative hearing if it has not already provided the process the unit owner must follow to contest the notice.

Rulings and Final Disposition

Based on this legal framework, the ALJ made the following conclusive findings:

• Petitioner Failed to Act: It was undisputed that Mr. Garcia did not respond in writing via certified mail to any of the three notices within the 21-day period. This failure meant Villagio’s statutory duty to provide the observer’s name was never activated.

• No Evidence of Prevention: Mr. Garcia failed to provide evidence showing how the issuance of subsequent notices legally prevented him from responding to the initial notice within its 21-day window. The ALJ found his belief that he only had 10 days was a misinterpretation and did not constitute prevention by the HOA.

• HOA Fulfilled Its Obligation: Villagio’s notices included instructions for contesting the violation through its own internal process. By doing so, Villagio satisfied the requirements of A.R.S. § 33-1242(D) and was therefore not obligated to inform Mr. Garcia of the option to petition for a separate administrative hearing.

• Petition Dismissed: Because Mr. Garcia failed to meet his burden of proof to establish a violation of A.R.S. § 33-1242, his petition was ordered dismissed in both the initial and rehearing decisions. The March 4, 2019, order was deemed binding on the parties, with any further appeal required to be filed with the superior court.


Charles P. Mandela vs. Blue Ridge Estates of Coconino County

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Case Summary

Case ID 19F-H1918006-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-02-28
Administrative Law Judge Velva Moses-Thompson
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles P. Mandela Counsel —
Respondent Blue Ridge Estates of Coconino County Homeowners' Association Counsel Paul K. Frame, Esq.

Alleged Violations

CC&Rs § 3.1(a)

Outcome Summary

The Administrative Law Judge denied the homeowner's petition in its entirety, finding the homeowner failed to meet the burden of proof to show the HOA violated CC&R § 3.1(a) when denying the construction of a cedar patio structure.

Why this result: Petitioner failed to establish that the HOA violated CC&R 3.1(a). The proposed structure was found to be a second detached structure and/or a temporary structure barred by the community documents, and the Petitioner had previously failed to submit sufficient information for an attached structure proposal.

Key Issues & Findings

Alleged violation of CC&Rs § 3.1(a) by denying request for patio structure while allowing another member to erect a Tuff Shed.

Petitioner alleged the HOA improperly denied his request for a detached cedar patio structure (150 sq ft) based on CC&R § 3.1(A) which limits properties to one detached structure (Petitioner already had a tool shed). The ALJ found Petitioner failed to establish the violation, concluding the proposed structure was a second barred detached structure or a temporary structure (as concrete pavers were not equivalent to a required cement/block foundation). Petitioner also failed to provide sufficient architectural details for an attached structure request.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • CC&R § 3.1(a)
  • Architectural Committee Aligned Standard 3(D)

Analytics Highlights

Topics: HOA rules enforcement, architectural review, detached structures, temporary structures, rehearing
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • CC&R § 3.1(a)
  • Architectural Committee Aligned Standard 3(D)

Audio Overview

Decision Documents

19F-H1918006-REL-RHG Decision – 692294.pdf

Uploaded 2025-10-09T03:33:21 (119.5 KB)





Briefing Doc – 19F-H1918006-REL-RHG


Briefing Document: Mandela v. Blue Ridge Estates HOA

Executive Summary

This document synthesizes the findings and conclusions from two administrative law hearings concerning a dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners Association of Coconino County (“Blue Ridge”). The core of the dispute was Blue Ridge’s repeated denial of Mr. Mandela’s requests to construct a 150-square-foot cedar patio structure on his property.

The Administrative Law Judge (ALJ) ultimately denied Mr. Mandela’s petition in both an initial hearing and a subsequent rehearing, finding that the homeowner failed to meet the burden of proof to establish any violation of the association’s governing documents. The ALJ’s decisions affirmed that Blue Ridge acted within its authority and correctly applied its Covenants, Conditions, and Restrictions (CC&Rs) and architectural regulations.

Key takeaways from the rulings include:

• Violation of Detached Structure Limit: Mr. Mandela’s request for a detached patio was denied because he already had a tool shed, and the HOA rules explicitly permit only one detached structure per property.

• Improper “Play Structure” Request: An initial request framing the patio as a “play structure” was correctly denied as its proposed 150 sq. ft. size exceeded the 80 sq. ft. limit for certain play structures.

• Insufficient Plans for Attached Structure: A separate request to attach the structure to his home was denied due to Mr. Mandela’s failure to provide the required detailed architectural plans and construction drawings, which the HOA deemed necessary for approval.

• Arguments Found Lacking: Mr. Mandela’s arguments—including claims of selective enforcement, discrimination against homeowners without children, and misinterpretation of the term “temporary structure”—were found to be unsubstantiated by evidence. The ALJ concluded the structure would be a prohibited temporary structure as the proposed concrete pavers do not constitute a permanent foundation under the HOA’s definition.

Case Overview

Parties Involved

Description

Petitioner

Charles P. Mandela

A homeowner and member of the Blue Ridge Estates HOA.

Respondent

Blue Ridge Estates Homeowners Association of Coconino County

The governing homeowners’ association for the Blue Ridge Estates development.

Adjudicator

Velva Moses-Thompson

Administrative Law Judge, Office of Administrative Hearings.

Timeline of Key Events

c. Feb 1, 2018

Mr. Mandela submits his first request for a 150 sq. ft. patio, using a “Play Structure Approval Request” form. Blue Ridge denies it for exceeding the size limit.

c. Mar 2, 2018

Mr. Mandela submits a second request, this time to attach a cedar patio shade to his home. Blue Ridge requests detailed plans and materials.

c. Mar 8, 2018

Blue Ridge denies the request for an attached structure due to “incomplete information,” instructing Mr. Mandela to provide formal drawings as per CC&R guidelines.

c. Mar 23, 2018

Mr. Mandela files an internal appeal with Blue Ridge, which is subsequently denied for the same reason of incomplete construction information.

Post-Mar 23, 2018

Mr. Mandela submits a third request for a detached 150 sq. ft. cedar patio structure. Blue Ridge denies it because he already has a detached tool shed.

c. Jul 31, 2018

Mr. Mandela files a petition with the Arizona Department of Real Estate, alleging Blue Ridge violated CC&R § 3.1(a) by denying his request while allowing another member a Tuff Shed.

Oct 17, 2018

An evidentiary hearing is held before the Office of Administrative Hearings.

Nov 6, 2018

The ALJ issues the initial decision, denying Mr. Mandela’s petition.

Dec 12, 2018

The Arizona Department of Real Estate orders a rehearing of the matter.

Feb 8, 2019

The rehearing is held before the same ALJ.

Feb 28, 2019

The ALJ issues the final decision, again finding in favor of Blue Ridge and denying Mr. Mandela’s petition.

Analysis of Construction Requests and Denials

Mr. Mandela made three distinct applications to the Blue Ridge Architectural Committee for his proposed 150 sq. ft. cedar patio structure, each of which was denied for different reasons based on the HOA’s governing documents.

Request 1: Detached “Play Structure”

Mr. Mandela’s initial application on February 1, 2018, was submitted using a “Play Structure Approval Request” form.

• HOA Rule: The form, based on modified Rules and Regulations from April 6, 2016, states: “Cannot exceed 80 SF if it’s a Tree House, Tree Viewing Stand, Play House/Fort.”

• Denial Rationale: Blue Ridge denied the request because the proposed 150 sq. ft. size of the structure exceeded the 80 sq. ft. limit specified for this type of structure.

Request 2: Attached Cedar Patio Shade

On March 2, 2018, Mr. Mandela submitted a new request to attach the structure to his home.

• HOA Action: The committee chairman, John Hart, requested documents showing the structure would not be free-standing, such as plans and material specifications.

• Mandela’s Response: In a March 3 email, Mr. Mandela stated: “I am building this myself. I am not an Architect, I have not software to show (6) 2 by 4”s to attach from the single family roof lie to the roof lien of the same roof.” He asserted that photos of other attached structures were sufficient.

• Denial Rationale: The request was denied on March 8 due to “incomplete information.” The denial letter explicitly instructed Mr. Mandela to submit all required documents, including drawings that “match exactly what you are going to build,” per CC&R Section 10.3. His subsequent appeal was also denied, with Blue Ridge noting that a manufacturer’s representative stated they would not warranty the product if the design was altered and reiterating the need for detailed elevation drawings.

Request 3: Detached Cedar Patio Structure

Following the denial of his appeal, Mr. Mandela submitted a third request for a detached version of the patio.

• HOA Rule: According to CC&R § 3.1(A) and Architectural Committee Aligned Standard 3(D), “One detached structure may… be constructed on a property.”

• Denial Rationale: Blue Ridge denied this request because Mr. Mandela already had one detached structure—a tool shed—on his property. The rules permit only one such structure.

Key Arguments and Rulings from Administrative Hearings

At the initial hearing and subsequent rehearing, both parties presented arguments regarding the application of the HOA’s rules. The ALJ systematically addressed and ruled on each point, ultimately concluding that the petitioner failed to prove his case.

Petitioner’s Core Arguments (Charles P. Mandela)

• Definition of “Detached Structure”: He argued that his proposed patio was not a “detached structure” under the CC&Rs because, based on his misinterpretation of a prior administrative ruling, a detached structure is one that can be easily converted into a second residence.

• Selective Enforcement: He alleged that Blue Ridge approved a “Tuff Shed” for another member and was not enforcing the 80 sq. ft. play structure size limit against other homeowners, thus discriminating against him.

• Discriminatory Rules: He contended that the rule allowing a second detached structure if it is a “play structure” violates CC&R 3.1 because it discriminates against people without children. He stated he wanted the patio for his mother.

• Definition of “Temporary Structure”: He asserted the structure was not a prohibited temporary structure because he planned to use concrete pavers, which he claimed constituted a “cement foundation” under the rules, and the materials had a 5-year warranty.

Respondent’s Core Arguments (Blue Ridge Estates HOA)

• One Detached Structure Rule: The rules unambiguously limit homeowners to one detached structure, and Mr. Mandela already had one.

• Incomplete Submissions: The request for an attached structure lacked the necessary architectural details to ensure it was properly and safely constructed, as required by the CC&Rs. Joseph Hancock, Vice President of Blue Ridge and a former contractor, testified that Mr. Mandela failed to consider critical factors like height and width differentials.

• Temporary Structure Violation: Mr. Hancock testified that a concrete paver is not the equivalent of a “cement or slab foundation.” Therefore, the proposed structure would be a prohibited temporary structure under the CC&Rs.

• No Selective Enforcement: Mr. Hancock refuted Mr. Mandela’s claims of selective enforcement, testifying that the lots Mr. Mandela cited either had structures built before 2003 (predating certain rules) or had no detached structures at all.

Administrative Law Judge’s Final Conclusions

The ALJ found that Mr. Mandela failed to establish his claims by a preponderance of the evidence. The final order denied his petition based on the following conclusions of law:

• Burden of Proof: The petitioner did not meet his burden to prove that Blue Ridge violated CC&R Article III, Section 3.1(a).

• Second Detached Structure: It was undisputed that Mr. Mandela had a shed on his property. The proposed 150 sq. ft. patio therefore constituted a barred second detached structure.

• Prior Rulings Not Precedent: The ALJ noted that Mr. Mandela misinterpreted the prior administrative decision he cited and, furthermore, that “prior administrative law judge decisions are not precedent or binding on future administrative law decisions.”

• Temporary Structure: The preponderance of the evidence showed the proposed structure is a temporary structure under the CC&Rs because “concrete pavers are not the equivalent of cement or block foundation.”

• Denial of Attached Structure: The denial of the request to attach the structure was proper, as the “Petitioner failed to provide sufficient details to illustrate how he would attach the cedar patio structure to his home.”

• No Evidence of Discrimination: The petitioner failed to establish that Blue Ridge approved other oversized play structures or that the denial of his requests was discriminatory. The ALJ also noted the tribunal lacked jurisdiction over potential constitutional claims under the Fourteenth Amendment.

Relevant HOA Governing Documents

Document/Section

Key Provision / Definition

CC&R § 3.1

Permitted Uses and Restrictions – Single Family: “No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage…”

Architectural Committee Aligned Standard 3(D)

Detached Structures: “One detached structure may, with Architectural Committee approval, be constructed on a property.”

CC&R § 3.6 & Aligned Standard

Temporary Structures: Prohibits temporary structures. A temporary structure is defined as one “without a cement or block foundation to which the structure or building is permanently attached.”

Modified Rules and Regulations (April 6, 2016)

Play Structures: Allows up to two play structures but specifies they “Cannot exceed 80 SF if it’s a Tree House, Tree Viewing Stand, Play House/Fort.”

CC&R § 3.24

Architectural Approval: “No building, fence, wall, screen, residence or other structure shall be commenced, erected, maintained, improved or altered… without the prior written approval of the… Architectural Committee.”

CC&R § 10.3

Architectural Submission Guidelines: Specifies the format and information required for submittals to the architectural committee.

CC&R § 12.2

Declaration Amendments: Requires an affirmative vote or written consent of members owning at least 75% of all lots to amend the Declaration.


Charles P. Mandela vs. Blue Ridge Estates of Coconino County

Posted on by

Case Summary

Case ID 19F-H1918006-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-02-28
Administrative Law Judge Velva Moses-Thompson
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles P. Mandela Counsel —
Respondent Blue Ridge Estates of Coconino County Homeowners' Association Counsel Paul K. Frame, Esq.

Alleged Violations

CC&Rs § 3.1(a)

Outcome Summary

The Administrative Law Judge denied the homeowner's petition in its entirety, finding the homeowner failed to meet the burden of proof to show the HOA violated CC&R § 3.1(a) when denying the construction of a cedar patio structure.

Why this result: Petitioner failed to establish that the HOA violated CC&R 3.1(a). The proposed structure was found to be a second detached structure and/or a temporary structure barred by the community documents, and the Petitioner had previously failed to submit sufficient information for an attached structure proposal.

Key Issues & Findings

Alleged violation of CC&Rs § 3.1(a) by denying request for patio structure while allowing another member to erect a Tuff Shed.

Petitioner alleged the HOA improperly denied his request for a detached cedar patio structure (150 sq ft) based on CC&R § 3.1(A) which limits properties to one detached structure (Petitioner already had a tool shed). The ALJ found Petitioner failed to establish the violation, concluding the proposed structure was a second barred detached structure or a temporary structure (as concrete pavers were not equivalent to a required cement/block foundation). Petitioner also failed to provide sufficient architectural details for an attached structure request.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • CC&R § 3.1(a)
  • Architectural Committee Aligned Standard 3(D)

Analytics Highlights

Topics: HOA rules enforcement, architectural review, detached structures, temporary structures, rehearing
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • CC&R § 3.1(a)
  • Architectural Committee Aligned Standard 3(D)

Audio Overview

Decision Documents

19F-H1918006-REL-RHG Decision – 692294.pdf

Uploaded 2025-10-08T07:06:55 (119.5 KB)





Briefing Doc – 19F-H1918006-REL-RHG


Briefing Document: Mandela v. Blue Ridge Estates HOA

Executive Summary

This document synthesizes the findings and conclusions from two administrative law hearings concerning a dispute between homeowner Charles P. Mandela and the Blue Ridge Estates Homeowners Association of Coconino County (“Blue Ridge”). The core of the dispute was Blue Ridge’s repeated denial of Mr. Mandela’s requests to construct a 150-square-foot cedar patio structure on his property.

The Administrative Law Judge (ALJ) ultimately denied Mr. Mandela’s petition in both an initial hearing and a subsequent rehearing, finding that the homeowner failed to meet the burden of proof to establish any violation of the association’s governing documents. The ALJ’s decisions affirmed that Blue Ridge acted within its authority and correctly applied its Covenants, Conditions, and Restrictions (CC&Rs) and architectural regulations.

Key takeaways from the rulings include:

• Violation of Detached Structure Limit: Mr. Mandela’s request for a detached patio was denied because he already had a tool shed, and the HOA rules explicitly permit only one detached structure per property.

• Improper “Play Structure” Request: An initial request framing the patio as a “play structure” was correctly denied as its proposed 150 sq. ft. size exceeded the 80 sq. ft. limit for certain play structures.

• Insufficient Plans for Attached Structure: A separate request to attach the structure to his home was denied due to Mr. Mandela’s failure to provide the required detailed architectural plans and construction drawings, which the HOA deemed necessary for approval.

• Arguments Found Lacking: Mr. Mandela’s arguments—including claims of selective enforcement, discrimination against homeowners without children, and misinterpretation of the term “temporary structure”—were found to be unsubstantiated by evidence. The ALJ concluded the structure would be a prohibited temporary structure as the proposed concrete pavers do not constitute a permanent foundation under the HOA’s definition.

Case Overview

Parties Involved

Description

Petitioner

Charles P. Mandela

A homeowner and member of the Blue Ridge Estates HOA.

Respondent

Blue Ridge Estates Homeowners Association of Coconino County

The governing homeowners’ association for the Blue Ridge Estates development.

Adjudicator

Velva Moses-Thompson

Administrative Law Judge, Office of Administrative Hearings.

Timeline of Key Events

c. Feb 1, 2018

Mr. Mandela submits his first request for a 150 sq. ft. patio, using a “Play Structure Approval Request” form. Blue Ridge denies it for exceeding the size limit.

c. Mar 2, 2018

Mr. Mandela submits a second request, this time to attach a cedar patio shade to his home. Blue Ridge requests detailed plans and materials.

c. Mar 8, 2018

Blue Ridge denies the request for an attached structure due to “incomplete information,” instructing Mr. Mandela to provide formal drawings as per CC&R guidelines.

c. Mar 23, 2018

Mr. Mandela files an internal appeal with Blue Ridge, which is subsequently denied for the same reason of incomplete construction information.

Post-Mar 23, 2018

Mr. Mandela submits a third request for a detached 150 sq. ft. cedar patio structure. Blue Ridge denies it because he already has a detached tool shed.

c. Jul 31, 2018

Mr. Mandela files a petition with the Arizona Department of Real Estate, alleging Blue Ridge violated CC&R § 3.1(a) by denying his request while allowing another member a Tuff Shed.

Oct 17, 2018

An evidentiary hearing is held before the Office of Administrative Hearings.

Nov 6, 2018

The ALJ issues the initial decision, denying Mr. Mandela’s petition.

Dec 12, 2018

The Arizona Department of Real Estate orders a rehearing of the matter.

Feb 8, 2019

The rehearing is held before the same ALJ.

Feb 28, 2019

The ALJ issues the final decision, again finding in favor of Blue Ridge and denying Mr. Mandela’s petition.

Analysis of Construction Requests and Denials

Mr. Mandela made three distinct applications to the Blue Ridge Architectural Committee for his proposed 150 sq. ft. cedar patio structure, each of which was denied for different reasons based on the HOA’s governing documents.

Request 1: Detached “Play Structure”

Mr. Mandela’s initial application on February 1, 2018, was submitted using a “Play Structure Approval Request” form.

• HOA Rule: The form, based on modified Rules and Regulations from April 6, 2016, states: “Cannot exceed 80 SF if it’s a Tree House, Tree Viewing Stand, Play House/Fort.”

• Denial Rationale: Blue Ridge denied the request because the proposed 150 sq. ft. size of the structure exceeded the 80 sq. ft. limit specified for this type of structure.

Request 2: Attached Cedar Patio Shade

On March 2, 2018, Mr. Mandela submitted a new request to attach the structure to his home.

• HOA Action: The committee chairman, John Hart, requested documents showing the structure would not be free-standing, such as plans and material specifications.

• Mandela’s Response: In a March 3 email, Mr. Mandela stated: “I am building this myself. I am not an Architect, I have not software to show (6) 2 by 4”s to attach from the single family roof lie to the roof lien of the same roof.” He asserted that photos of other attached structures were sufficient.

• Denial Rationale: The request was denied on March 8 due to “incomplete information.” The denial letter explicitly instructed Mr. Mandela to submit all required documents, including drawings that “match exactly what you are going to build,” per CC&R Section 10.3. His subsequent appeal was also denied, with Blue Ridge noting that a manufacturer’s representative stated they would not warranty the product if the design was altered and reiterating the need for detailed elevation drawings.

Request 3: Detached Cedar Patio Structure

Following the denial of his appeal, Mr. Mandela submitted a third request for a detached version of the patio.

• HOA Rule: According to CC&R § 3.1(A) and Architectural Committee Aligned Standard 3(D), “One detached structure may… be constructed on a property.”

• Denial Rationale: Blue Ridge denied this request because Mr. Mandela already had one detached structure—a tool shed—on his property. The rules permit only one such structure.

Key Arguments and Rulings from Administrative Hearings

At the initial hearing and subsequent rehearing, both parties presented arguments regarding the application of the HOA’s rules. The ALJ systematically addressed and ruled on each point, ultimately concluding that the petitioner failed to prove his case.

Petitioner’s Core Arguments (Charles P. Mandela)

• Definition of “Detached Structure”: He argued that his proposed patio was not a “detached structure” under the CC&Rs because, based on his misinterpretation of a prior administrative ruling, a detached structure is one that can be easily converted into a second residence.

• Selective Enforcement: He alleged that Blue Ridge approved a “Tuff Shed” for another member and was not enforcing the 80 sq. ft. play structure size limit against other homeowners, thus discriminating against him.

• Discriminatory Rules: He contended that the rule allowing a second detached structure if it is a “play structure” violates CC&R 3.1 because it discriminates against people without children. He stated he wanted the patio for his mother.

• Definition of “Temporary Structure”: He asserted the structure was not a prohibited temporary structure because he planned to use concrete pavers, which he claimed constituted a “cement foundation” under the rules, and the materials had a 5-year warranty.

Respondent’s Core Arguments (Blue Ridge Estates HOA)

• One Detached Structure Rule: The rules unambiguously limit homeowners to one detached structure, and Mr. Mandela already had one.

• Incomplete Submissions: The request for an attached structure lacked the necessary architectural details to ensure it was properly and safely constructed, as required by the CC&Rs. Joseph Hancock, Vice President of Blue Ridge and a former contractor, testified that Mr. Mandela failed to consider critical factors like height and width differentials.

• Temporary Structure Violation: Mr. Hancock testified that a concrete paver is not the equivalent of a “cement or slab foundation.” Therefore, the proposed structure would be a prohibited temporary structure under the CC&Rs.

• No Selective Enforcement: Mr. Hancock refuted Mr. Mandela’s claims of selective enforcement, testifying that the lots Mr. Mandela cited either had structures built before 2003 (predating certain rules) or had no detached structures at all.

Administrative Law Judge’s Final Conclusions

The ALJ found that Mr. Mandela failed to establish his claims by a preponderance of the evidence. The final order denied his petition based on the following conclusions of law:

• Burden of Proof: The petitioner did not meet his burden to prove that Blue Ridge violated CC&R Article III, Section 3.1(a).

• Second Detached Structure: It was undisputed that Mr. Mandela had a shed on his property. The proposed 150 sq. ft. patio therefore constituted a barred second detached structure.

• Prior Rulings Not Precedent: The ALJ noted that Mr. Mandela misinterpreted the prior administrative decision he cited and, furthermore, that “prior administrative law judge decisions are not precedent or binding on future administrative law decisions.”

• Temporary Structure: The preponderance of the evidence showed the proposed structure is a temporary structure under the CC&Rs because “concrete pavers are not the equivalent of cement or block foundation.”

• Denial of Attached Structure: The denial of the request to attach the structure was proper, as the “Petitioner failed to provide sufficient details to illustrate how he would attach the cedar patio structure to his home.”

• No Evidence of Discrimination: The petitioner failed to establish that Blue Ridge approved other oversized play structures or that the denial of his requests was discriminatory. The ALJ also noted the tribunal lacked jurisdiction over potential constitutional claims under the Fourteenth Amendment.

Relevant HOA Governing Documents

Document/Section

Key Provision / Definition

CC&R § 3.1

Permitted Uses and Restrictions – Single Family: “No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage…”

Architectural Committee Aligned Standard 3(D)

Detached Structures: “One detached structure may, with Architectural Committee approval, be constructed on a property.”

CC&R § 3.6 & Aligned Standard

Temporary Structures: Prohibits temporary structures. A temporary structure is defined as one “without a cement or block foundation to which the structure or building is permanently attached.”

Modified Rules and Regulations (April 6, 2016)

Play Structures: Allows up to two play structures but specifies they “Cannot exceed 80 SF if it’s a Tree House, Tree Viewing Stand, Play House/Fort.”

CC&R § 3.24

Architectural Approval: “No building, fence, wall, screen, residence or other structure shall be commenced, erected, maintained, improved or altered… without the prior written approval of the… Architectural Committee.”

CC&R § 10.3

Architectural Submission Guidelines: Specifies the format and information required for submittals to the architectural committee.

CC&R § 12.2

Declaration Amendments: Requires an affirmative vote or written consent of members owning at least 75% of all lots to amend the Declaration.


Patricia Wiercinski vs. Long Meadow Ranch East Property Owners

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Audio Overview

Decision Documents

19F-H1918028-REL Decision – 684134.pdf

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





Briefing Doc – 19F-H1918028-REL


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

Executive Summary

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

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

1. Case Overview

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

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

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

2. The Incident of June 19, 2017

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

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

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

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

3. The Central Evidence: The Email Correspondence

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

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

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

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

4. Legal Proceedings and Evolving Arguments

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

4.1. Initial Hearing (January 10, 2019)

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

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

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

4.2. Rehearing (April 22, 2019)

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

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

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

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

5. Key Findings and Conclusions of the Administrative Law Judge

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

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

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

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

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

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

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

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

Wayne Coates

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

Mike Olson

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

Gregg Arthur

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

Kathy Andrews

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

John Allen

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

Joe Zielinski

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

Diane Mihalsky

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


Patricia Wiercinski vs. Long Meadow Ranch East Property Owners

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Audio Overview

Decision Documents

19F-H1918028-REL Decision – 684134.pdf

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





Briefing Doc – 19F-H1918028-REL


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

Executive Summary

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

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

1. Case Overview

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

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

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

2. The Incident of June 19, 2017

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

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

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

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

3. The Central Evidence: The Email Correspondence

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

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

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

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

4. Legal Proceedings and Evolving Arguments

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

4.1. Initial Hearing (January 10, 2019)

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

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

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

4.2. Rehearing (April 22, 2019)

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

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

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

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

5. Key Findings and Conclusions of the Administrative Law Judge

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

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

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

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

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

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

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

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

Wayne Coates

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

Mike Olson

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

Gregg Arthur

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

Kathy Andrews

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

John Allen

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

Joe Zielinski

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

Diane Mihalsky

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


Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Posted on by

Case Summary

Case ID 18F-H1817018-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-09
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Scott Servilla & Heidi H Servilla Counsel —
Respondent Village of Oakcreek Association Counsel Mark K. Sahl

Alleged Violations

A.R.S. § 33-1817(A)(1)
A.R.S. § 33-1812(B)(2)
By-Laws Section 8, Article VIII

Outcome Summary

The Administrative Law Judge denied the entire petition. Issues one and three were denied because Petitioner failed to prove those claims. Issue two, concerning the alleged violation of A.R.S. § 33-1812(B)(2) regarding the ballot, was denied based on the doctrine of waiver, as Petitioner did not object to the known procedural issue prior to the vote.

Why this result: Petitioner failed to prove Issues 1 and 3; Issue 2 failed due to waiver based on the precedent set in Zajac v. City of Casa Grande, because Petitioner allowed the defective vote to proceed without objection.

Key Issues & Findings

Validity of 2016 declaration amendment vote regarding required majority

Petitioner claimed the November 10, 2016 vote failed to meet the required 1173 votes necessary to amend the declaration, and requested an order that the amendment is invalid.

Orders: Petitioner's claim was denied after the ALJ found Petitioner failed to prove the claim.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Improper written ballot bundling multiple proposed actions

Petitioner claimed the written ballot used for the November 10, 2016 vote improperly grouped multiple proposed actions (Leasing and Schedule of Fines) and failed to provide a separate opportunity to vote for or against each, violating the statute.

Orders: The ALJ initially found a statutory violation but determined no remedy could be ordered; upon rehearing, the claim was denied based on the doctrine of waiver.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Zajac v. City of Casa Grande
  • Allen v. State

Imposing fines in excess of $50 per violation

Petitioner alleged Respondent violated the By-Laws by imposing fines in excess of $50 per violation.

Orders: Petitioner's request for an order prohibiting fines in excess of $50 per violation and imposing a civil penalty was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Analytics Highlights

Topics: Waiver Doctrine, HOA Election Procedure, Ballot Requirements, Fines and Penalties, Administrative Law Judge Decision, Rehearing
Additional Citations:

  • A.R.S. § 33-1817(1)
  • A.R.S. § 33-1812(B)(2)
  • A.R.S. § 33-1812(A)
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297 (2004)
  • Allen v. State, 14 Ariz. 458, 130 P. 1114 (1913)

Decision Documents

18F-H1817018-REL-RHG Decision – 673729.pdf

Uploaded 2025-10-09T03:32:15 (40.8 KB)

18F-H1817018-REL-RHG Decision – 673828.pdf

Uploaded 2025-10-09T03:32:15 (48.5 KB)

18F-H1817018-REL-RHG Decision – 680738.pdf

Uploaded 2025-10-09T03:32:15 (103.5 KB)





Briefing Doc – 18F-H1817018-REL-RHG


Briefing Document: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the case of Scott Servilla versus the Village of Oakcreek Association. The final order, issued on January 9, 2019, after a rehearing, denied the Petitioner’s petition in its entirety. The central finding was that the Petitioner, Scott Servilla, had waived his right to challenge procedural defects in a November 10, 2016, homeowners association vote because he failed to raise his objections prior to the vote being held.

The core of the dispute involved a ballot that combined two distinct proposed amendments—one concerning leasing restrictions and another regarding a schedule of fines—into a single up-or-down vote. While an initial decision found that this ballot format violated Arizona statute A.R.S. § 33-1812(A)(2), it concluded no remedy could be ordered. After a rehearing was granted, the Administrative Law Judge (ALJ) based the final denial on the legal doctrine of waiver, citing the Arizona Supreme Court precedent in Zajac v. City of Casa Grande. The ALJ concluded that since Servilla received the ballot over a month before the vote, he had ample opportunity to object to its format but did not. He could not, therefore, wait to see the unfavorable result before lodging his complaint. This decision is binding on the parties, with any appeal required to be filed in superior court.

Case Overview and Participants

This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate.

Case Detail

Information

Case Name

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Case Number

18F-H1817018-REL-RHG

Hearing Body

Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Key Participants

• Petitioner: Scott S. Servilla, who appeared on his own behalf.

• Respondent: Village of Oakcreek Association, an Arizona association of 2436 homeowners, represented by Mark K. Sahl of Carpenter, Hazlewood, Delgado & Bolen LLP.

Procedural History and Allegations

The case involved a petition filed on November 13, 2017, which evolved to encompass three distinct allegations after the Petitioner paid an additional filing fee. Following an initial hearing, the Petitioner requested and was granted a rehearing by the Commissioner for the Arizona Department of Real Estate on or about September 21, 2018. The rehearing took place on November 29, 2018, after which the record was held open until December 20, 2018, for the Petitioner to file a response.

Petitioner’s Three Core Allegations

The Petitioner’s claims, as set forth in the petition, were:

1. Improper Vote Count: The vote on November 10, 2016, allegedly violated A.R.S. § 33-1817(A)(1) and the Master Declaration because it failed to achieve the 1173 votes required for a majority to amend the declaration.

2. Improper Ballot Format: The written ballot for the November 10, 2016, vote violated A.R.S. § 33-1812(B)(2) because it “did not provide a separate opportunity to vote for or against each proposed action.” This was the central issue of the rehearing.

3. Illegal Fines: The Association allegedly violated its By-Laws (Section 8, Article VIII) by imposing fines greater than $50 per violation, particularly after members had voted against an amendment to raise this limit.

In the initial decision, the ALJ found the Petitioner failed to prove his claims on issues one and three. While the ALJ found a statutory violation regarding issue two (the ballot format), it was initially determined that no remedy could be ordered, which prompted the successful request for a rehearing.

The Disputed Vote of November 10, 2016

The case centered on a vote taken at a Special Meeting of Members to approve a “Leasing and Schedule of Fines Assessment.”

• Combined Proposals: The absentee ballot presented members with a single proposed amendment that bundled two separate changes to the Master Declaration:

◦ Leasing Restrictions: The addition of a new section, 4.23, which established a minimum lease term of 30 days and prohibited leases of less than an entire lot or unit.

◦ Schedule of Fines: The complete replacement of an existing section, 5.08, which permitted the association’s committee to adopt a schedule specifying fines for violations.

• Ballot Format: The ballot provided a single choice for members to vote either “FOR THE LEASING AND SCHEDULE OF FINES AMENDMENT” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT.”

• Vote Results:

◦ Total Ballots: 1067 were received (approximately 44% of members).

◦ Outcome: 564 voted in favor of the amendment (approximately 53% of votes cast).

Central Legal Analysis and Ruling

The final decision after the rehearing did not revisit the merits of whether the ballot was statutorily compliant. Instead, it was based entirely on the legal doctrine of waiver, which precluded the Petitioner from bringing his claim.

The Doctrine of Waiver

The ALJ’s conclusion rested on the precedent set by the Arizona Supreme Court in Zajac v. City of Casa Grande and Allen v. State. This legal principle holds that a party who is aware of a procedural defect in an election or vote prior to its occurrence cannot remain silent, wait for the outcome, and then challenge the process if the result is unfavorable.

The decision quotes the principle from Zajac: “one cannot knowingly let a defective vote proceed only to complain and seek redress if the results are not to the individual’s liking.”

Application to the Petitioner

The ALJ applied this doctrine directly to the facts of the case:

1. Awareness of the Defect: The Petitioner acknowledged receiving the absentee ballot on or about October 4, 2016.

2. Opportunity to Object: The vote was not held until November 10, 2016, giving the Petitioner over a month to raise an objection to the ballot’s format.

3. Failure to Object: The Petitioner did not raise any objections to the manner of the vote until April 2017, long after the vote had concluded. The petition itself was not filed until November 13, 2017.

4. Conclusion of Waiver: Having failed to object in a timely manner, the Petitioner was deemed to have waived his right to challenge the ballot. The ALJ stated, “He cannot have it both ways; that is, he cannot allow the [vote] to proceed without objection, and then be permitted thereafter to assert his protest.”

Because the Petitioner’s claim was barred by the doctrine of waiver, the ALJ concluded that his petition must fail.

Final Order and Implications

Based on the foregoing conclusions of law, the Administrative Law Judge issued a definitive order.

• The Order: “IT IS ORDERED that Petitioner’s petition is denied.”

• Binding Nature: The decision notes that as an order issued as a result of a rehearing, it is binding on the parties pursuant to A.R.S. § 32-2199.02(B).

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.


Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

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Case Summary

Case ID 18F-H1817018-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-01-09
Administrative Law Judge Tammy L. Eigenheer
Outcome none
Filing Fees Refunded $1,500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Scott Servilla & Heidi H Servilla Counsel —
Respondent Village of Oakcreek Association Counsel Mark K. Sahl

Alleged Violations

A.R.S. § 33-1817(A)(1)
A.R.S. § 33-1812(B)(2)
By-Laws Section 8, Article VIII

Outcome Summary

The Administrative Law Judge denied the entire petition. Issues one and three were denied because Petitioner failed to prove those claims. Issue two, concerning the alleged violation of A.R.S. § 33-1812(B)(2) regarding the ballot, was denied based on the doctrine of waiver, as Petitioner did not object to the known procedural issue prior to the vote.

Why this result: Petitioner failed to prove Issues 1 and 3; Issue 2 failed due to waiver based on the precedent set in Zajac v. City of Casa Grande, because Petitioner allowed the defective vote to proceed without objection.

Key Issues & Findings

Validity of 2016 declaration amendment vote regarding required majority

Petitioner claimed the November 10, 2016 vote failed to meet the required 1173 votes necessary to amend the declaration, and requested an order that the amendment is invalid.

Orders: Petitioner's claim was denied after the ALJ found Petitioner failed to prove the claim.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Improper written ballot bundling multiple proposed actions

Petitioner claimed the written ballot used for the November 10, 2016 vote improperly grouped multiple proposed actions (Leasing and Schedule of Fines) and failed to provide a separate opportunity to vote for or against each, violating the statute.

Orders: The ALJ initially found a statutory violation but determined no remedy could be ordered; upon rehearing, the claim was denied based on the doctrine of waiver.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Zajac v. City of Casa Grande
  • Allen v. State

Imposing fines in excess of $50 per violation

Petitioner alleged Respondent violated the By-Laws by imposing fines in excess of $50 per violation.

Orders: Petitioner's request for an order prohibiting fines in excess of $50 per violation and imposing a civil penalty was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Analytics Highlights

Topics: Waiver Doctrine, HOA Election Procedure, Ballot Requirements, Fines and Penalties, Administrative Law Judge Decision, Rehearing
Additional Citations:

  • A.R.S. § 33-1817(1)
  • A.R.S. § 33-1812(B)(2)
  • A.R.S. § 33-1812(A)
  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • Zajac v. City of Casa Grande, 209 Ariz. 357, 102 P.3d 297 (2004)
  • Allen v. State, 14 Ariz. 458, 130 P. 1114 (1913)

Decision Documents

18F-H1817018-REL-RHG Decision – 673729.pdf

Uploaded 2025-10-08T07:03:47 (40.8 KB)

18F-H1817018-REL-RHG Decision – 673828.pdf

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18F-H1817018-REL-RHG Decision – 680738.pdf

Uploaded 2025-10-08T07:03:48 (103.5 KB)





Briefing Doc – 18F-H1817018-REL-RHG


Briefing Document: Servilla v. Village of Oakcreek Association (Case No. 18F-H1817018-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the case of Scott Servilla versus the Village of Oakcreek Association. The final order, issued on January 9, 2019, after a rehearing, denied the Petitioner’s petition in its entirety. The central finding was that the Petitioner, Scott Servilla, had waived his right to challenge procedural defects in a November 10, 2016, homeowners association vote because he failed to raise his objections prior to the vote being held.

The core of the dispute involved a ballot that combined two distinct proposed amendments—one concerning leasing restrictions and another regarding a schedule of fines—into a single up-or-down vote. While an initial decision found that this ballot format violated Arizona statute A.R.S. § 33-1812(A)(2), it concluded no remedy could be ordered. After a rehearing was granted, the Administrative Law Judge (ALJ) based the final denial on the legal doctrine of waiver, citing the Arizona Supreme Court precedent in Zajac v. City of Casa Grande. The ALJ concluded that since Servilla received the ballot over a month before the vote, he had ample opportunity to object to its format but did not. He could not, therefore, wait to see the unfavorable result before lodging his complaint. This decision is binding on the parties, with any appeal required to be filed in superior court.

Case Overview and Participants

This matter was adjudicated by the Arizona Office of Administrative Hearings following a petition filed with the Arizona Department of Real Estate.

Case Detail

Information

Case Name

Scott Servilla & Heidi H Servilla vs. Village of Oakcreek Association

Case Number

18F-H1817018-REL-RHG

Hearing Body

Office of Administrative Hearings

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Key Participants

• Petitioner: Scott S. Servilla, who appeared on his own behalf.

• Respondent: Village of Oakcreek Association, an Arizona association of 2436 homeowners, represented by Mark K. Sahl of Carpenter, Hazlewood, Delgado & Bolen LLP.

Procedural History and Allegations

The case involved a petition filed on November 13, 2017, which evolved to encompass three distinct allegations after the Petitioner paid an additional filing fee. Following an initial hearing, the Petitioner requested and was granted a rehearing by the Commissioner for the Arizona Department of Real Estate on or about September 21, 2018. The rehearing took place on November 29, 2018, after which the record was held open until December 20, 2018, for the Petitioner to file a response.

Petitioner’s Three Core Allegations

The Petitioner’s claims, as set forth in the petition, were:

1. Improper Vote Count: The vote on November 10, 2016, allegedly violated A.R.S. § 33-1817(A)(1) and the Master Declaration because it failed to achieve the 1173 votes required for a majority to amend the declaration.

2. Improper Ballot Format: The written ballot for the November 10, 2016, vote violated A.R.S. § 33-1812(B)(2) because it “did not provide a separate opportunity to vote for or against each proposed action.” This was the central issue of the rehearing.

3. Illegal Fines: The Association allegedly violated its By-Laws (Section 8, Article VIII) by imposing fines greater than $50 per violation, particularly after members had voted against an amendment to raise this limit.

In the initial decision, the ALJ found the Petitioner failed to prove his claims on issues one and three. While the ALJ found a statutory violation regarding issue two (the ballot format), it was initially determined that no remedy could be ordered, which prompted the successful request for a rehearing.

The Disputed Vote of November 10, 2016

The case centered on a vote taken at a Special Meeting of Members to approve a “Leasing and Schedule of Fines Assessment.”

• Combined Proposals: The absentee ballot presented members with a single proposed amendment that bundled two separate changes to the Master Declaration:

◦ Leasing Restrictions: The addition of a new section, 4.23, which established a minimum lease term of 30 days and prohibited leases of less than an entire lot or unit.

◦ Schedule of Fines: The complete replacement of an existing section, 5.08, which permitted the association’s committee to adopt a schedule specifying fines for violations.

• Ballot Format: The ballot provided a single choice for members to vote either “FOR THE LEASING AND SCHEDULE OF FINES AMENDMENT” or “AGAINST THE LEASING AND SCHEDULE OF FINES AMENDMENT.”

• Vote Results:

◦ Total Ballots: 1067 were received (approximately 44% of members).

◦ Outcome: 564 voted in favor of the amendment (approximately 53% of votes cast).

Central Legal Analysis and Ruling

The final decision after the rehearing did not revisit the merits of whether the ballot was statutorily compliant. Instead, it was based entirely on the legal doctrine of waiver, which precluded the Petitioner from bringing his claim.

The Doctrine of Waiver

The ALJ’s conclusion rested on the precedent set by the Arizona Supreme Court in Zajac v. City of Casa Grande and Allen v. State. This legal principle holds that a party who is aware of a procedural defect in an election or vote prior to its occurrence cannot remain silent, wait for the outcome, and then challenge the process if the result is unfavorable.

The decision quotes the principle from Zajac: “one cannot knowingly let a defective vote proceed only to complain and seek redress if the results are not to the individual’s liking.”

Application to the Petitioner

The ALJ applied this doctrine directly to the facts of the case:

1. Awareness of the Defect: The Petitioner acknowledged receiving the absentee ballot on or about October 4, 2016.

2. Opportunity to Object: The vote was not held until November 10, 2016, giving the Petitioner over a month to raise an objection to the ballot’s format.

3. Failure to Object: The Petitioner did not raise any objections to the manner of the vote until April 2017, long after the vote had concluded. The petition itself was not filed until November 13, 2017.

4. Conclusion of Waiver: Having failed to object in a timely manner, the Petitioner was deemed to have waived his right to challenge the ballot. The ALJ stated, “He cannot have it both ways; that is, he cannot allow the [vote] to proceed without objection, and then be permitted thereafter to assert his protest.”

Because the Petitioner’s claim was barred by the doctrine of waiver, the ALJ concluded that his petition must fail.

Final Order and Implications

Based on the foregoing conclusions of law, the Administrative Law Judge issued a definitive order.

• The Order: “IT IS ORDERED that Petitioner’s petition is denied.”

• Binding Nature: The decision notes that as an order issued as a result of a rehearing, it is binding on the parties pursuant to A.R.S. § 32-2199.02(B).

• Appeal Process: Any party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five days from the date the order was served.


Tom Barrs v. Desert Ranch Homeowner’s Association

Posted on by

Case Summary

Case ID 18F-H1818035-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-12-26
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Barrs Counsel —
Respondent Desert Ranch Homeowners' Association Counsel —

Alleged Violations

Bylaw 2.4

Outcome Summary

In the initial decision, Petitioner established violations of A.R.S. § 33-1812(A)(7) (election materials disposal) and A.R.S. § 33-1804 (closed/improperly noticed meetings), but failed to establish a violation of Bylaw 2.4 (Issue 1). The rehearing only addressed Issue 1, which was ultimately dismissed.

Why this result: Petitioner lost Issue 1 (Bylaw 2.4 violation) because the ALJ found that while the Bylaw applied to Members, Petitioner failed to show it prohibited a Director from raising concerns about election validity after the meeting adjourned, and the investigation was initiated by a Board member immediately following the meeting.

Key Issues & Findings

Violation of Bylaw 2.4 (Election Objection Waiver)

Whether Respondent violated Bylaw 2.4 when it acted on an objection to the election results raised the day after the Annual Meeting, given that the Bylaw requires members to object to irregularities 'at the meeting' to avoid waiver.

Orders: The Petition was dismissed as to Issue 1.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA Dispute, Election Challenge, Bylaw Violation, Meeting Notice, Record Retention, Rehearing
Additional Citations:

  • A.R.S. § 33-1813
  • A.R.S. § 33-1811
  • A.R.S. § 33-1812
  • A.R.S. § 33-1804
  • Bylaw 3.3
  • Bylaw 2.4

Audio Overview

Decision Documents

18F-H1818035-REL-RHG Decision – 678304.pdf

Uploaded 2025-10-09T03:32:46 (117.5 KB)

18F-H1818035-REL-RHG Decision – 678305.pdf

Uploaded 2025-10-09T03:32:46 (38.8 KB)





Briefing Doc – 18F-H1818035-REL-RHG


Barrs v. Desert Ranch HOA: Case Briefing

Executive Summary

This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.

An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.

The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.

Case Overview

This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.

Case Detail

Information

Case Number

18F-H1818035-REL-RHG

Petitioner

Tom Barrs

Respondent

Desert Ranch Homeowners’ Association

Presiding Judge

Tammy L. Eigenheer, Administrative Law Judge

Initial Hearing

Not specified in document

Rehearing Date

December 6, 2018

Decision Date

December 26, 2018

Key Individuals:

• Tom Barrs: Petitioner.

• Catherine Overby: HOA President, appeared for Respondent.

• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.

• Jerome Klinger: Candidate initially announced as a winner of the election.

• Patrick Rice: Board member at the time of the election.

Chronology of the 2017 Election Dispute

1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.

2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.

3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.

4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.

5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.

6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.

7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.

8. May 10, 2017: The Board of Directors holds an organizational meeting.

Procedural History and Allegations

Initial Petition and Hearing

• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.

• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.

• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”

The three core issues alleged by the petitioner were:

1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.

2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.

3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.

Initial Decision

Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:

• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.

• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.

• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.

Rehearing and Final Order

• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.

• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.

Judicial Analysis and Final Rulings

The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.

Key Bylaw and Legal Standard

• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:

• Burden of Proof: The petitioner bore the burden of proving the violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Analysis of Issue 1: Violation of Bylaw 2.4

• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.

• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.

• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.

◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.

◦ Bylaw 2.4 applies specifically to a “Member.”

◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.

◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.

Final Order

Based on the analysis from the rehearing, the judge issued the following order:

IT IS ORDERED that the Petition be dismissed as to Issue 1.

This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.


Tom Barrs v. Desert Ranch Homeowner’s Association

Posted on by

Case Summary

Case ID 18F-H1818035-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-12-26
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom Barrs Counsel —
Respondent Desert Ranch Homeowners' Association Counsel —

Alleged Violations

Bylaw 2.4

Outcome Summary

In the initial decision, Petitioner established violations of A.R.S. § 33-1812(A)(7) (election materials disposal) and A.R.S. § 33-1804 (closed/improperly noticed meetings), but failed to establish a violation of Bylaw 2.4 (Issue 1). The rehearing only addressed Issue 1, which was ultimately dismissed.

Why this result: Petitioner lost Issue 1 (Bylaw 2.4 violation) because the ALJ found that while the Bylaw applied to Members, Petitioner failed to show it prohibited a Director from raising concerns about election validity after the meeting adjourned, and the investigation was initiated by a Board member immediately following the meeting.

Key Issues & Findings

Violation of Bylaw 2.4 (Election Objection Waiver)

Whether Respondent violated Bylaw 2.4 when it acted on an objection to the election results raised the day after the Annual Meeting, given that the Bylaw requires members to object to irregularities 'at the meeting' to avoid waiver.

Orders: The Petition was dismissed as to Issue 1.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)

Analytics Highlights

Topics: HOA Dispute, Election Challenge, Bylaw Violation, Meeting Notice, Record Retention, Rehearing
Additional Citations:

  • A.R.S. § 33-1813
  • A.R.S. § 33-1811
  • A.R.S. § 33-1812
  • A.R.S. § 33-1804
  • Bylaw 3.3
  • Bylaw 2.4

Audio Overview

Decision Documents

18F-H1818035-REL-RHG Decision – 678304.pdf

Uploaded 2025-10-08T07:05:24 (117.5 KB)

18F-H1818035-REL-RHG Decision – 678305.pdf

Uploaded 2025-10-08T07:05:25 (38.8 KB)





Briefing Doc – 18F-H1818035-REL-RHG


Barrs v. Desert Ranch HOA: Case Briefing

Executive Summary

This briefing document outlines the legal dispute between Petitioner Tom Barrs and the Desert Ranch Homeowners’ Association (HOA) concerning the HOA’s March 18, 2017, Board of Directors election. The petitioner alleged that the HOA improperly overturned the initial election results, mishandled election materials, and held meetings in violation of state law and its own bylaws.

An initial ruling by an Administrative Law Judge found the HOA in violation of state statutes regarding the retention of election materials (A.R.S. § 33-1812(A)(7)) and open meeting laws (A.R.S. § 33-1804). However, the judge ruled against the petitioner on the central claim that the HOA violated Bylaw 2.4 by investigating the election after the annual meeting had concluded.

The petitioner requested and was granted a rehearing, which focused exclusively on the alleged violation of Bylaw 2.4. The final decision on rehearing, issued December 26, 2018, reaffirmed the initial ruling. The judge concluded that the investigation was properly initiated by a board member, not a general member, and that the bylaw restricting post-meeting objections did not apply to the Board of Directors itself. Consequently, the petition regarding the overturning of the election was dismissed.

Case Overview

This document details the findings of fact and conclusions of law in the administrative case No. 18F-H1818035-REL-RHG, heard in the Arizona Office of Administrative Hearings.

Case Detail

Information

Case Number

18F-H1818035-REL-RHG

Petitioner

Tom Barrs

Respondent

Desert Ranch Homeowners’ Association

Presiding Judge

Tammy L. Eigenheer, Administrative Law Judge

Initial Hearing

Not specified in document

Rehearing Date

December 6, 2018

Decision Date

December 26, 2018

Key Individuals:

• Tom Barrs: Petitioner.

• Catherine Overby: HOA President, appeared for Respondent.

• Brian Schoeffler: HOA Vice President, appeared for Respondent; candidate in the disputed election.

• Jerome Klinger: Candidate initially announced as a winner of the election.

• Patrick Rice: Board member at the time of the election.

Chronology of the 2017 Election Dispute

1. Pre-March 18, 2017: Absentee ballots are sent to HOA members listing Catherine Overby and Brian Schoeffler as candidates, with a space for a write-in.

2. March 18, 2017: At the Annual Meeting, ballots are submitted and counted. Catherine Overby and write-in candidate Jerome Klinger are announced as the winners. No members object before the meeting is adjourned. Immediately following, board member Patrick Rice gathers the ballots and expresses concerns about the results.

3. March 19, 2017: Brian Schoeffler sends an email to board members asking for a review and a decision on whether a “revote” is necessary.

4. March 20, 2017: Catherine Overby emails the HOA membership, stating the election has been “contested” and that the board must investigate. She also asserts that bylaws do not allow write-in candidates, meaning she and Schoeffler were the new directors based on the vote count.

5. March 29, 2017: Certain board members, including Overby and Rice, meet with an attorney at Overby’s house. They discover that duplicate and proxy ballots were improperly counted.

6. Post-March 29, 2017: The board determines the valid votes resulted in a tie between Schoeffler and Klinger. A run-off election is scheduled.

7. April 29, 2017: The run-off election is held. Brian Schoeffler is announced as the winner.

8. May 10, 2017: The Board of Directors holds an organizational meeting.

Procedural History and Allegations

Initial Petition and Hearing

• March 19, 2018: Tom Barrs files a single-issue HOA Dispute Petition with the Arizona Department of Real Estate, paying a $500 fee but including a four-page narrative alleging multiple violations.

• April 13, 2018: Barrs files an amended petition, adding an alleged violation of A.R.S. § 33-1812.

• July 30, 2018: Barrs pays to convert the petition to a multiple-issue dispute and submits a “Clarification of Three Issues alleged in Petition.”

The three core issues alleged by the petitioner were:

1. Improper Overturning of Election: The Board of Directors improperly removed Jerome Klinger by overturning the March 18, 2017 election results. The petitioner argued the challenge by the third candidate was barred by Bylaw 2.4, and the methods used violated recall protocols under A.R.S. § 33-1813 and Bylaw 3.3.

2. Improper Handling of Election Materials: The board violated A.R.S. § 33-1812 by disposing of election materials (ballot envelopes) required to be kept for one year and by selectively invalidating votes cast on invalid ballots.

3. Improperly Held Meetings: Meetings related to the 2017 election were held as closed sessions or without proper notice in violation of A.R.S. § 33-1804.

Initial Decision

Following the initial hearing, the Administrative Law Judge (ALJ) issued a decision with the following conclusions:

• Violation Found: The Respondent (HOA) violated A.R.S. § 33-1812(A)(7) by discarding the ballot envelopes around the time of the election.

• Violation Found: The Respondent violated A.R.S. § 33-1804 by holding meetings that were closed and/or without proper notice.

• No Violation Found: The Petitioner failed to prove that the Respondent violated Bylaw 2.4.

Rehearing and Final Order

• October 1, 2018: Barrs files a request for rehearing, citing misconduct, insufficient penalties, errors of law, and a decision not supported by evidence.

• November 2, 2018: The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

• December 6, 2018: At the rehearing, the petitioner states he is only seeking reconsideration of Issue 1 (the improper overturning of the election) and not the lack of penalties for Issues 2 and 3.

Judicial Analysis and Final Rulings

The final decision focused solely on whether the HOA’s actions violated its own bylaws regarding election challenges.

Key Bylaw and Legal Standard

• Desert Ranch Bylaw 2.4: The central bylaw in dispute states:

• Burden of Proof: The petitioner bore the burden of proving the violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Analysis of Issue 1: Violation of Bylaw 2.4

• Petitioner’s Argument: Mr. Barrs argued that because candidate Brian Schoeffler did not object to the election results before the March 18, 2017 meeting adjourned, Bylaw 2.4 barred the board from investigating his concerns raised the following day via email. The petitioner contended that board members are also “Members” and thus are bound by this rule.

• Evidence Presented: Testimony established that Patrick Rice, acting as a Board member, expressed concerns with the vote count immediately after the meeting adjourned. This, not Mr. Schoeffler’s subsequent email, initiated the board’s investigation. At the rehearing, the petitioner presented selected audio clips he had recorded to support his arguments but did not provide the entire recording.

• Conclusion of Law: The ALJ made a critical distinction between the terms used in the HOA’s bylaws.

◦ The terms “Member,” “Directors,” and “Board of Directors” were found to have specific, non-interchangeable meanings throughout the bylaws.

◦ Bylaw 2.4 applies specifically to a “Member.”

◦ The petitioner made no showing that a “Director” or the “Board of Directors” could not raise questions about the validity of election results after a meeting had adjourned.

◦ Since the investigation was initiated by a board member (Rice) and not exclusively by a member’s untimely objection (Schoeffler), the board’s actions did not violate Bylaw 2.4.

Final Order

Based on the analysis from the rehearing, the judge issued the following order:

IT IS ORDERED that the Petition be dismissed as to Issue 1.

This order, resulting from a rehearing, is legally binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.


Charles P Mandela vs. Blue Ridge Estates Homeowners Association of

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Case Summary

Case ID 19F-H1918006-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-02-28
Administrative Law Judge Velva Moses-Thompson
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Charles P. Mandela Counsel —
Respondent Blue Ridge Estates of Coconino County Homeowners' Association Counsel Paul K. Frame, Esq.

Alleged Violations

CC&Rs § 3.1(a)

Outcome Summary

The Administrative Law Judge denied the homeowner's petition in its entirety, finding the homeowner failed to meet the burden of proof to show the HOA violated CC&R § 3.1(a) when denying the construction of a cedar patio structure.

Why this result: Petitioner failed to establish that the HOA violated CC&R 3.1(a). The proposed structure was found to be a second detached structure and/or a temporary structure barred by the community documents, and the Petitioner had previously failed to submit sufficient information for an attached structure proposal.

Key Issues & Findings

Alleged violation of CC&Rs § 3.1(a) by denying request for patio structure while allowing another member to erect a Tuff Shed.

Petitioner alleged the HOA improperly denied his request for a detached cedar patio structure (150 sq ft) based on CC&R § 3.1(A) which limits properties to one detached structure (Petitioner already had a tool shed). The ALJ found Petitioner failed to establish the violation, concluding the proposed structure was a second barred detached structure or a temporary structure (as concrete pavers were not equivalent to a required cement/block foundation). Petitioner also failed to provide sufficient architectural details for an attached structure request.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • CC&R § 3.1(a)
  • Architectural Committee Aligned Standard 3(D)

Analytics Highlights

Topics: HOA rules enforcement, architectural review, detached structures, temporary structures, rehearing
Additional Citations:

  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • CC&R § 3.1(a)
  • Architectural Committee Aligned Standard 3(D)

Audio Overview

Decision Documents

19F-H1918006-REL Decision – 669528.pdf

Uploaded 2025-10-09T03:33:20 (91.9 KB)