Tag Archives: A.R.S. § 33-1803

Michelle Ruffo vs. Reflections in the Catalinas Condo Association

Posted on October 3, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818044-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-10-03
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michelle Ruffo	Counsel	—
Respondent	Reflections in the Catalinas Condo Association	Counsel	Nathan Tennyson

Alleged Violations

A.R.S. §§ 33-1242, 33-1248, 33-1803(A), 33-1803(B), 33-1805; CC&Rs §§ 1.36, 1.38, 4.7, 2.8.3

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.

Why this result: Petitioner continually violated CC&R § 4.7 and failed to prove Respondent violated any CC&R or statute, particularly as A.R.S. § 33-1242 did not apply to disputes concerning the use of limited common elements.

Key Issues & Findings

HOA violation of CC&Rs and Statutes by imposing parking fines

Petitioner challenged the HOA's decision to assess continuous fines against her account totaling $2,544.00 for repeatedly parking in spaces that were not assigned to her unit 52, arguing the fines and enforcement lacked proper statutory process and violated CC&Rs. The ALJ found that Petitioner failed to meet her burden of proof and that the statute cited (A.R.S. § 33-1242) concerning property condition notices did not apply to this dispute regarding limited common elements (parking spaces).

Orders: Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1242
• A.R.S. § 33-1803
• CC&R § 4.7
• CC&R § 2.8.3

Analytics Highlights

Topics: parking violation, fines, HOA enforcement, limited common elements, due process, Arizona Department of Real Estate

Additional Citations:

• A.R.S. § 32-2199
• A.R.S. § 33-1242
• A.R.S. § 33-1248
• A.R.S. § 33-1803
• A.R.S. § 33-1805
• A.R.S. § 12-349
• CC&R § 4.7
• CC&R § 2.8.3

Audio Overview

Decision Documents

18F-H1818044-REL Decision – 663567.pdf

Uploaded 2025-10-08T07:05:38 (270.9 KB)

Briefing Document: Ruffo v. Reflections in the Catalinas Condo Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in case number 18F-H1818044-REL, involving Petitioner Michelle Ruffo and Respondent Reflections in the Catalinas Condo Association. The core of the dispute centers on a series of fines levied by the Association against Ms. Ruffo for repeatedly parking in condominium parking spaces not assigned to her unit.

The Petitioner argued that she had informal written permission from other residents to use their spaces, that the Association’s notices of violation were procedurally flawed, that she was the victim of retaliatory harassment, and that her own assigned space was frequently occupied by others. The Respondent maintained that its actions were in strict accordance with the community’s Covenants, Conditions, and Restrictions (CC&Rs), which unambiguously require owners to use only their assigned parking spaces and outline a formal process for reallocating them, a process the Petitioner did not follow.

The ALJ ultimately denied the petition, finding that Ms. Ruffo failed to meet her burden of proof. The decision concluded that the Association acted within its rights, that its enforcement actions were consistent with its governing documents, and that the Petitioner’s reliance on informal agreements represented the very “evils that the CC&Rs were designed to prevent.” As of the hearing date, the outstanding balance of fines, interest, and fees on the Petitioner’s account totaled $2,544.00.

Case Background

Parties Involved

Name / Entity

Representation / Key Details

Petitioner

Michelle Ruffo

Owner of unit 52, assigned parking space #131. Appeared on her own behalf.

Respondent

Reflections in the Catalinas Condo Assoc.

The condominium unit owners’ association. Represented by Nathan Tennyson, Esq. of Brown Olcott, PLLC.

Adjudicator

Diane Mihalsky

Administrative Law Judge, Office of Administrative Hearings.

Witnesses

Carol Lundberg

Testified for the Petitioner.

Vanessa Chapman Lubinsky & Gabino Trejo

Former and current property managers, respectively, who testified for the Respondent.

Core Dispute

The central issue is the Association’s imposition of fines against Ms. Ruffo for violating the community’s parking regulations. On or about April 17, 2018, Ms. Ruffo filed a petition alleging the Association violated its CC&Rs and several Arizona statutes by fining her for parking in spaces #38 and #40, which were not assigned to her unit #52. The Association denied any violation, asserting it was enforcing valid community rules.

Chronology of the Dispute

The conflict escalated over a period of approximately two years, marked by a series of notices, fines, and failed attempts at resolution.

• August 2, 2016: The Association sends a “Friendly Reminder” to Ms. Ruffo to cease parking in space #40 and use her assigned space, #131.

• August 5, 2016: A “Notice of Violation” is sent for the same issue, serving as a second warning.

• March 14, 2017: A “Final Non-Compliance Notice” is issued, noting violations in both space #40 and #38. The notice informs Ms. Ruffo of her right to a hearing with the Board of Directors if requested within 14 days.

• March 30, 2017: The first fine of $50.00 is assessed after Ms. Ruffo’s vehicle is again observed in space #38.

• April 17, 2017: Ms. Ruffo responds in writing, claiming she has permission to use the spaces and requests the fine be waived.

• April 27, 2017: The Association’s Board reviews and denies the waiver request. Ms. Ruffo was invited to address the Board but did not attend.

• June 6, 2017: A $200.00 fine is assessed for two observed violations in space #40.

• June 26, 2017: Another $200.00 fine is assessed for violations in spaces #40 and #38.

• July 11, 2017: The Association warns that access to community amenities (pool, fitness room) will be denied if fines remain unpaid. This action is later taken.

• August 31, 2017: A Board meeting is scheduled for Ms. Ruffo and her attorney, Mark F. Williman, to attend. Neither party attends, and they fail to provide advance notice. The Association incurs a $200 legal fee for its attorney’s attendance.

• September 25, 2017: Fines totaling $1,400.00 are assessed for multiple observed violations.

• September 27, 2017: The Association attempts to tow Ms. Ruffo’s vehicle. The attempt is aborted after she refuses to exit the vehicle and calls the Pima County Sheriff’s Office.

• October 4, 2017: The Association’s attorney informs Ms. Ruffo that another hearing will not be scheduled until she reimburses the Association for the $200 legal fee from the missed August 31 meeting.

• October 2017 – January 2018: A series of additional fines are assessed for ongoing violations, and Ms. Ruffo sends multiple letters requesting a hearing and protesting the fines and the $200 reimbursement requirement.

• April 17, 2018: Ms. Ruffo files the formal petition with the Arizona Department of Real Estate.

• September 18, 2018: The evidentiary hearing is held before the Office of Administrative Hearings.

Analysis of Arguments and Evidence

Petitioner’s Position (Michelle Ruffo)

Ms. Ruffo’s defense was multi-faceted, based on claims of permission, procedural errors by the Association, and alleged harassment.

• Claim of Permission: Ms. Ruffo testified that since 2005, she had been parking in spaces #38 and #40 with written permission. She claimed a 2006 agreement with the Morleys, then owners of unit #56, for space #40. She also submitted a 2018 email from Julie Ruiz, a tenant in unit #53, granting permission to use space #38.

• Allegations of Improper Notices: She argued the Association’s notices violated A.R.S. § 33-1242(C) because they did not always identify the person who observed the violation or provide photographic evidence.

• Allegations of Harassment and Retaliation: Through an attorney, Ms. Ruffo alleged she was being “unlawfully discriminated against and harassed in retaliation for her role related to allegations that HOA President Mitch Treese misappropriated HOA funds.” The ALJ noted that no evidence was submitted at the hearing to support this claim.

• Counter-Evidence: Ms. Ruffo submitted photographs dated from October 2016 to July 2017 showing other vehicles, including those of Associa maintenance and a landscaping contractor, parked in her assigned space #131.

• Dispute over Hearing Preconditions: She argued that the Association’s demand for a $200 reimbursement for its attorney’s fees as a condition for a new hearing was unlawful and not permitted under the CC&Rs.

Respondent’s Position (The Association)

The Association’s case rested on the explicit language of its governing documents and its adherence to established enforcement procedures.

• Primacy of the CC&Rs: The Association argued that its governing documents are unambiguous. Section 4.7 explicitly forbids owners from parking in any space other than the one assigned to their unit as a Limited Common Element.

• Formal Reallocation Process: Per Section 2.8.3, reallocating a Limited Common Element like a parking space requires a formal, written amendment executed by the unit owners involved and submitted to the Board for approval. Ms. Ruffo never followed this procedure.

• Rejection of Informal Agreements: The property manager testified that such private agreements are not legally binding or enforceable by the Association and create confusion, as evidenced by complaints from subsequent owners and tenants who were unable to use their assigned spaces.

• Adherence to Enforcement Policy: The Association followed its documented Violation Enforcement Policy, starting with a friendly reminder and escalating to formal notices and fines for continued non-compliance.

• Opportunity to Be Heard: Ms. Ruffo was provided opportunities to address the Board on April 27, 2017, and August 31, 2017. She failed to attend either meeting, and her failure to provide notice for the latter caused the Association to incur unnecessary legal fees.

• Witness Testimony: The former property manager, Ms. Chapman, testified that she had personally witnessed all the charged violations.

Governing Documents and Statutes

The case hinged on the interpretation of the Association’s CC&Rs and relevant Arizona state law.

Key CC&R Provisions

Section

Provision

Relevance

Motor Vehicles: “no Owner, Lessee or Occupant may park any . . . motor vehicle . . . in any Parking Spaces other than the Parking Space assigned to the Unit as a Limited Common Element.”

The central rule that the Petitioner was found to have repeatedly violated.

§ 2.8.3

Reallocation of Limited Common Elements: A reallocation requires a formal, recorded amendment executed by the owners and submitted to the Board.

The official procedure for changing parking space assignments, which the Petitioner did not follow for her informal agreements.

§ 13.1

Enforcement: Grants the Association the right to impose monetary penalties, suspend an owner’s right to use facilities, and tow vehicles in violation of the rules, after notice and an opportunity to be heard.

Provides the legal authority within the governing documents for the Association’s actions (fines, suspension of amenity access, attempted tow).

§ 1.36

“Parking Space” Definition: Defines a parking space as a portion of the Limited Common Elements.

Legally classifies the disputed parking spaces, making them subject to the rules governing Limited Common Elements.

Arizona Revised Statutes (A.R.S.)

The Petitioner cited A.R.S. § 33-1242(C), which requires an association, upon written request from an owner, to provide details of an alleged violation, including the observer’s name and the date. The ALJ determined this statute was inapplicable to the dispute. The judge’s reasoning was that the statute applies specifically to notices regarding the “condition of the property owned by the unit owner” (i.e., her physical condo unit #52), not her use of Limited Common Elements like parking spaces, which she does not own.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was a conclusive denial of the petition, siding entirely with the Association.

Final Order: “IT IS ORDERED that Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied because Petitioner has not established that Respondent violated the CC&Rs or any statute in assessing fines against her for her repeated violations of CC&R § 4.7 by parking in spaces that were not assigned to her unit #52.”

Key Legal Conclusions

• Burden of Proof: The Petitioner bore the burden of proving her claims by a preponderance of the evidence and failed to do so.

• Unambiguous Covenants: The CC&Rs regarding parking are unambiguous and must be enforced to give effect to the intent of the parties. CC&R § 4.7 clearly requires owners to park in their assigned spaces.

• Invalidity of Informal Agreements: The ALJ found that the Petitioner’s reliance on informal agreements illustrated “the evils that the CC&Rs were designed to prevent.” These undocumented side deals create instability and conflict when properties are sold or new tenants arrive, undermining the security and order of the community’s parking plan.

• Respondent’s Proper Conduct: The Association was found to have followed its own enforcement policy and provided the Petitioner with opportunities to be heard.

• Attorney’s Fee Condition: While the CC&Rs do not explicitly authorize charging an owner for attorney’s fees as a precondition for a hearing, the ALJ noted that A.R.S. § 33-1242(A)(18) allows an association to “exercise any . . . powers necessary and proper for the governance and operation.” Furthermore, civil statutes often require a party to pay for fees they cause an opponent to incur unnecessarily.

• Futility of a Board Hearing: The ALJ concluded that, in light of the Petitioner’s arguments and her “continued violation of Respondent’s parking policy over nearly two years,” a hearing before the Association’s Board would not have changed her behavior or the outcome of the matter.

Financial Implications

The conflict resulted in significant financial penalties for the Petitioner. The fines were assessed on an escalating basis for continued violations.

• March 30, 2017: $50.00

• June 6, 2017: $200.00

• June 26, 2017: $200.00

• August 9, 2017: $200.00

• September 25, 2017: $1,400.00

• October 17, 2017: $100.00

• November 6, 2017: $100.00

As of the hearing on September 18, 2018, the total outstanding balance on Ms. Ruffo’s account, including interest and certified letter fees, was $2,544.00.

Michelle Ruffo vs. Reflections in the Catalinas Condo Association

Posted on October 3, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818044-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-10-03
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Michelle Ruffo	Counsel	—
Respondent	Reflections in the Catalinas Condo Association	Counsel	Nathan Tennyson

Alleged Violations

A.R.S. §§ 33-1242, 33-1248, 33-1803(A), 33-1803(B), 33-1805; CC&Rs §§ 1.36, 1.38, 4.7, 2.8.3

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Petitioner failed to prove the HOA violated the governing documents or relevant statutes in assessing fines for unauthorized parking.

Why this result: Petitioner continually violated CC&R § 4.7 and failed to prove Respondent violated any CC&R or statute, particularly as A.R.S. § 33-1242 did not apply to disputes concerning the use of limited common elements.

Key Issues & Findings

HOA violation of CC&Rs and Statutes by imposing parking fines

Petitioner challenged the HOA's decision to assess continuous fines against her account totaling $2,544.00 for repeatedly parking in spaces that were not assigned to her unit 52, arguing the fines and enforcement lacked proper statutory process and violated CC&Rs. The ALJ found that Petitioner failed to meet her burden of proof and that the statute cited (A.R.S. § 33-1242) concerning property condition notices did not apply to this dispute regarding limited common elements (parking spaces).

Orders: Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 33-1242
• A.R.S. § 33-1803
• CC&R § 4.7
• CC&R § 2.8.3

Analytics Highlights

Topics: parking violation, fines, HOA enforcement, limited common elements, due process, Arizona Department of Real Estate

Additional Citations:

• A.R.S. § 32-2199
• A.R.S. § 33-1242
• A.R.S. § 33-1248
• A.R.S. § 33-1803
• A.R.S. § 33-1805
• A.R.S. § 12-349
• CC&R § 4.7
• CC&R § 2.8.3

Audio Overview

Decision Documents

18F-H1818044-REL Decision – 663567.pdf

Uploaded 2025-10-09T03:32:52 (270.9 KB)

Briefing Document: Ruffo v. Reflections in the Catalinas Condo Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in case number 18F-H1818044-REL, involving Petitioner Michelle Ruffo and Respondent Reflections in the Catalinas Condo Association. The core of the dispute centers on a series of fines levied by the Association against Ms. Ruffo for repeatedly parking in condominium parking spaces not assigned to her unit.

The Petitioner argued that she had informal written permission from other residents to use their spaces, that the Association’s notices of violation were procedurally flawed, that she was the victim of retaliatory harassment, and that her own assigned space was frequently occupied by others. The Respondent maintained that its actions were in strict accordance with the community’s Covenants, Conditions, and Restrictions (CC&Rs), which unambiguously require owners to use only their assigned parking spaces and outline a formal process for reallocating them, a process the Petitioner did not follow.

The ALJ ultimately denied the petition, finding that Ms. Ruffo failed to meet her burden of proof. The decision concluded that the Association acted within its rights, that its enforcement actions were consistent with its governing documents, and that the Petitioner’s reliance on informal agreements represented the very “evils that the CC&Rs were designed to prevent.” As of the hearing date, the outstanding balance of fines, interest, and fees on the Petitioner’s account totaled $2,544.00.

Case Background

Parties Involved

Name / Entity

Representation / Key Details

Petitioner

Michelle Ruffo

Owner of unit 52, assigned parking space #131. Appeared on her own behalf.

Respondent

Reflections in the Catalinas Condo Assoc.

The condominium unit owners’ association. Represented by Nathan Tennyson, Esq. of Brown Olcott, PLLC.

Adjudicator

Diane Mihalsky

Administrative Law Judge, Office of Administrative Hearings.

Witnesses

Carol Lundberg

Testified for the Petitioner.

Vanessa Chapman Lubinsky & Gabino Trejo

Former and current property managers, respectively, who testified for the Respondent.

Core Dispute

The central issue is the Association’s imposition of fines against Ms. Ruffo for violating the community’s parking regulations. On or about April 17, 2018, Ms. Ruffo filed a petition alleging the Association violated its CC&Rs and several Arizona statutes by fining her for parking in spaces #38 and #40, which were not assigned to her unit #52. The Association denied any violation, asserting it was enforcing valid community rules.

Chronology of the Dispute

The conflict escalated over a period of approximately two years, marked by a series of notices, fines, and failed attempts at resolution.

• August 2, 2016: The Association sends a “Friendly Reminder” to Ms. Ruffo to cease parking in space #40 and use her assigned space, #131.

• August 5, 2016: A “Notice of Violation” is sent for the same issue, serving as a second warning.

• March 14, 2017: A “Final Non-Compliance Notice” is issued, noting violations in both space #40 and #38. The notice informs Ms. Ruffo of her right to a hearing with the Board of Directors if requested within 14 days.

• March 30, 2017: The first fine of $50.00 is assessed after Ms. Ruffo’s vehicle is again observed in space #38.

• April 17, 2017: Ms. Ruffo responds in writing, claiming she has permission to use the spaces and requests the fine be waived.

• April 27, 2017: The Association’s Board reviews and denies the waiver request. Ms. Ruffo was invited to address the Board but did not attend.

• June 6, 2017: A $200.00 fine is assessed for two observed violations in space #40.

• June 26, 2017: Another $200.00 fine is assessed for violations in spaces #40 and #38.

• July 11, 2017: The Association warns that access to community amenities (pool, fitness room) will be denied if fines remain unpaid. This action is later taken.

• August 31, 2017: A Board meeting is scheduled for Ms. Ruffo and her attorney, Mark F. Williman, to attend. Neither party attends, and they fail to provide advance notice. The Association incurs a $200 legal fee for its attorney’s attendance.

• September 25, 2017: Fines totaling $1,400.00 are assessed for multiple observed violations.

• September 27, 2017: The Association attempts to tow Ms. Ruffo’s vehicle. The attempt is aborted after she refuses to exit the vehicle and calls the Pima County Sheriff’s Office.

• October 4, 2017: The Association’s attorney informs Ms. Ruffo that another hearing will not be scheduled until she reimburses the Association for the $200 legal fee from the missed August 31 meeting.

• October 2017 – January 2018: A series of additional fines are assessed for ongoing violations, and Ms. Ruffo sends multiple letters requesting a hearing and protesting the fines and the $200 reimbursement requirement.

• April 17, 2018: Ms. Ruffo files the formal petition with the Arizona Department of Real Estate.

• September 18, 2018: The evidentiary hearing is held before the Office of Administrative Hearings.

Analysis of Arguments and Evidence

Petitioner’s Position (Michelle Ruffo)

Ms. Ruffo’s defense was multi-faceted, based on claims of permission, procedural errors by the Association, and alleged harassment.

• Claim of Permission: Ms. Ruffo testified that since 2005, she had been parking in spaces #38 and #40 with written permission. She claimed a 2006 agreement with the Morleys, then owners of unit #56, for space #40. She also submitted a 2018 email from Julie Ruiz, a tenant in unit #53, granting permission to use space #38.

• Allegations of Improper Notices: She argued the Association’s notices violated A.R.S. § 33-1242(C) because they did not always identify the person who observed the violation or provide photographic evidence.

• Allegations of Harassment and Retaliation: Through an attorney, Ms. Ruffo alleged she was being “unlawfully discriminated against and harassed in retaliation for her role related to allegations that HOA President Mitch Treese misappropriated HOA funds.” The ALJ noted that no evidence was submitted at the hearing to support this claim.

• Counter-Evidence: Ms. Ruffo submitted photographs dated from October 2016 to July 2017 showing other vehicles, including those of Associa maintenance and a landscaping contractor, parked in her assigned space #131.

• Dispute over Hearing Preconditions: She argued that the Association’s demand for a $200 reimbursement for its attorney’s fees as a condition for a new hearing was unlawful and not permitted under the CC&Rs.

Respondent’s Position (The Association)

The Association’s case rested on the explicit language of its governing documents and its adherence to established enforcement procedures.

• Primacy of the CC&Rs: The Association argued that its governing documents are unambiguous. Section 4.7 explicitly forbids owners from parking in any space other than the one assigned to their unit as a Limited Common Element.

• Formal Reallocation Process: Per Section 2.8.3, reallocating a Limited Common Element like a parking space requires a formal, written amendment executed by the unit owners involved and submitted to the Board for approval. Ms. Ruffo never followed this procedure.

• Rejection of Informal Agreements: The property manager testified that such private agreements are not legally binding or enforceable by the Association and create confusion, as evidenced by complaints from subsequent owners and tenants who were unable to use their assigned spaces.

• Adherence to Enforcement Policy: The Association followed its documented Violation Enforcement Policy, starting with a friendly reminder and escalating to formal notices and fines for continued non-compliance.

• Opportunity to Be Heard: Ms. Ruffo was provided opportunities to address the Board on April 27, 2017, and August 31, 2017. She failed to attend either meeting, and her failure to provide notice for the latter caused the Association to incur unnecessary legal fees.

• Witness Testimony: The former property manager, Ms. Chapman, testified that she had personally witnessed all the charged violations.

Governing Documents and Statutes

The case hinged on the interpretation of the Association’s CC&Rs and relevant Arizona state law.

Key CC&R Provisions

Section

Provision

Relevance

Motor Vehicles: “no Owner, Lessee or Occupant may park any . . . motor vehicle . . . in any Parking Spaces other than the Parking Space assigned to the Unit as a Limited Common Element.”

The central rule that the Petitioner was found to have repeatedly violated.

§ 2.8.3

Reallocation of Limited Common Elements: A reallocation requires a formal, recorded amendment executed by the owners and submitted to the Board.

The official procedure for changing parking space assignments, which the Petitioner did not follow for her informal agreements.

§ 13.1

Enforcement: Grants the Association the right to impose monetary penalties, suspend an owner’s right to use facilities, and tow vehicles in violation of the rules, after notice and an opportunity to be heard.

Provides the legal authority within the governing documents for the Association’s actions (fines, suspension of amenity access, attempted tow).

§ 1.36

“Parking Space” Definition: Defines a parking space as a portion of the Limited Common Elements.

Legally classifies the disputed parking spaces, making them subject to the rules governing Limited Common Elements.

Arizona Revised Statutes (A.R.S.)

The Petitioner cited A.R.S. § 33-1242(C), which requires an association, upon written request from an owner, to provide details of an alleged violation, including the observer’s name and the date. The ALJ determined this statute was inapplicable to the dispute. The judge’s reasoning was that the statute applies specifically to notices regarding the “condition of the property owned by the unit owner” (i.e., her physical condo unit #52), not her use of Limited Common Elements like parking spaces, which she does not own.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision was a conclusive denial of the petition, siding entirely with the Association.

Final Order: “IT IS ORDERED that Petitioner Michelle Ruffo’s petition against Respondent Reflections in the Catalinas Condo Association is denied because Petitioner has not established that Respondent violated the CC&Rs or any statute in assessing fines against her for her repeated violations of CC&R § 4.7 by parking in spaces that were not assigned to her unit #52.”

Key Legal Conclusions

• Burden of Proof: The Petitioner bore the burden of proving her claims by a preponderance of the evidence and failed to do so.

• Unambiguous Covenants: The CC&Rs regarding parking are unambiguous and must be enforced to give effect to the intent of the parties. CC&R § 4.7 clearly requires owners to park in their assigned spaces.

• Invalidity of Informal Agreements: The ALJ found that the Petitioner’s reliance on informal agreements illustrated “the evils that the CC&Rs were designed to prevent.” These undocumented side deals create instability and conflict when properties are sold or new tenants arrive, undermining the security and order of the community’s parking plan.

• Respondent’s Proper Conduct: The Association was found to have followed its own enforcement policy and provided the Petitioner with opportunities to be heard.

• Attorney’s Fee Condition: While the CC&Rs do not explicitly authorize charging an owner for attorney’s fees as a precondition for a hearing, the ALJ noted that A.R.S. § 33-1242(A)(18) allows an association to “exercise any . . . powers necessary and proper for the governance and operation.” Furthermore, civil statutes often require a party to pay for fees they cause an opponent to incur unnecessarily.

• Futility of a Board Hearing: The ALJ concluded that, in light of the Petitioner’s arguments and her “continued violation of Respondent’s parking policy over nearly two years,” a hearing before the Association’s Board would not have changed her behavior or the outcome of the matter.

Financial Implications

The conflict resulted in significant financial penalties for the Petitioner. The fines were assessed on an escalating basis for continued violations.

• March 30, 2017: $50.00

• June 6, 2017: $200.00

• June 26, 2017: $200.00

• August 9, 2017: $200.00

• September 25, 2017: $1,400.00

• October 17, 2017: $100.00

• November 6, 2017: $100.00

As of the hearing on September 18, 2018, the total outstanding balance on Ms. Ruffo’s account, including interest and certified letter fees, was $2,544.00.

Patricia Davies-Brown vs. Starwood Estates Homeowners Association

Posted on September 14, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818039-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-09-14
Administrative Law Judge	Velva Moses-Thompson
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Patricia Davies-Brown, Individually and as Trustee of the Trust; BART A. BROWN, JR.; SCOTT R. DAVIES	Counsel	—
Respondent	Starwood Estates Homeowners Association	Counsel	Daniel Campbell & Kristopher L. Smith

Alleged Violations

CC&Rs; Bylaws; Architectural Guidelines

Outcome Summary

The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.

Why this result: Petitioners failed to establish by a preponderance of the evidence that Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Key Issues & Findings

Violation of Exterior Appearance and Colors provisions regarding copper-colored metal roof approval

Petitioners alleged that the HOA improperly approved a copper-colored metal roof because it constituted a reflective surface and did not blend with the natural surroundings, violating the community documents. The ALJ denied the petition, finding Petitioners failed to establish by a preponderance of the evidence that the HOA violated its documents, noting the reflective surfaces ban applied to windows and doors, not roofs, and the roof's appearance was acceptable.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: architectural control, CC&Rs enforcement, metal roof approval, reflective surfaces, burden of proof

Additional Citations:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

18F-H1818039-REL Decision – 653217.pdf

Uploaded 2025-10-09T03:32:48 (41.6 KB)

18F-H1818039-REL Decision – 659968.pdf

Uploaded 2025-10-09T03:32:48 (104.6 KB)

Briefing Document: Davies-Brown v. Starwood Estates HOA

Executive Summary

This document summarizes the administrative hearing and decision in case No. 18F-H1818039-REL, concerning a dispute between homeowners Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies (the “Petitioners”) and the Starwood Estates Homeowners Association (the “Respondent”). The core of the dispute was the HOA Board of Directors’ 2013 approval of a copper-colored metal roof for homeowners Jeff and Karen Martin.

The Petitioners alleged this approval violated the community’s CC&Rs, Bylaws, and Architectural Guidelines. Their primary arguments were that the roof was an impermissible “reflective surface,” that it did not “blend with the natural surrounding and landscape,” and that the Board lacked the authority to approve it without prior review by the Architectural Committee (ACC) and without viewing a physical sample.

The Respondent defended the Board’s decision, arguing that the Board possessed the authority to grant such approvals. They contended the prohibition on reflective surfaces in the community guidelines applies specifically to windows and doors, not roofing. Furthermore, they asserted that the roof was aesthetically compliant and that other reflective metal roofs exist within the community.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Respondent. The decision, issued on September 14, 2018, denied the petition, concluding that the Petitioners failed to meet their burden of proof. The ALJ found that the Board had the authority to approve the roof, the ban on reflective surfaces did not apply to roofing, and the Petitioners did not establish that the roof failed to blend with its natural surroundings.

——————————————————————————–

Case Overview

• Case Name: Patricia Davies-Brown, et al. vs. Starwood Estates Homeowners Association

• Case Number: 18F-H1818039-REL

• Forum: Arizona Office of Administrative Hearings

• Presiding Judge: Velva Moses-Thompson, Administrative Law Judge

• Hearing Dates: July 10, 2018, and August 13, 2018

• Final Decision Date: September 14, 2018

Key Parties and Representatives

Name(s)

Representation / Contact

Petitioners

Patricia Davies-Brown, Bart A. Brown, Jr., Scott R. Davies

Appeared on behalf of themselves
9777 E Dreyfus Ave., Scottsdale, AZ 85260
Pat.davies-brown@cox.net

Respondent

Starwood Estates Homeowners Association

Kristopher L. Smith, Esq.
O’Connor & Campbell, P.C.
7955 S Priest Dr., Tempe, AZ 85284
kris.smith@occlaw.com

Homeowners

Jeff and Karen Martin

Owners of the property with the disputed roof at 8500 Skywood Drive, Pinetop, Arizona (Lot 40 of Starwood Estates).

Core Dispute: The Martin Residence Roof

The central conflict originated in the summer of 2013 when the Starwood Estates Board of Directors approved a request from Jeff and Karen Martin to install a copper-colored metal roof on their home. The approval was passed by a 5-1 vote. Petitioner Scott R. Davies was the sole board member who voted against the approval at that time.

The Board reviewed a brochure containing the roof’s color before granting approval but did not observe a physical sample. However, one Board member, Pat Knight, was reportedly familiar with the appearance of such roofs from a previous home she owned nearby. The petition challenging this 2013 decision was filed on or about March 26, 2018.

Petitioners’ Allegations and Arguments

The Petitioners filed their petition with the Arizona Department of Real Estate, alleging that the HOA violated community governing documents. Their case was built on three central questions:

1. Does the exterior appearance of the Martins’ aluminum copper-colored metal roof blend with the “natural surrounding and landscape” of Starwood Estates?

2. Does such roof constitute a “reflective surface”?

3. If the answer to (1) above is no and/or the answer to (2) above is yes, did the ACC and the Board of Starwood Estates erroneously violate the provisions of the CC&R’s and GUIDELINES in permitting the Martins to install such aluminum copper-colored metal roof…?

During the hearing, the Petitioners expanded on these points, arguing:

• Reflective Surface: The copper-colored roof was a prohibited reflective surface under the Architectural Guidelines.

• Aesthetic Incompatibility: The roof did not blend with the natural surroundings as required.

• Procedural Violations:

◦ The Board violated the CC&Rs by approving the roof without first viewing a physical sample of the material.

◦ The approval was invalid because it should have first been granted by the two-person Architectural Committee (ACC) appointed by the Board.

Respondent’s Defense and Arguments

The Starwood Estates HOA maintained that its approval of the Martin roof was proper and compliant with all governing documents. Their key arguments were:

• Board Authority: The HOA asserted that either the Board of Directors or the Architectural Committee had the authority to approve the roof.

• Interpretation of “Reflective Surfaces”: The Respondent argued that the prohibition on “reflective surfaces” within the Architectural Guidelines applies specifically to windows and doors, not to roofing, which is addressed in a separate section of the guidelines.

• Aesthetic Compliance: They contended the roof, while having a “shine,” was not a barred reflective surface and did blend in with the natural surroundings.

• Precedent: The HOA noted that several other metal roofs that are reflective had been previously approved in Starwood Estates. They submitted images of reflective green and red roofs in the Pinetop Country Club area as evidence.

Referenced Governing Documents

The decision cited specific sections from the HOA’s governing documents to adjudicate the dispute.

• Section 3.1.4: Requires prior written approval from the Architectural Committee for any work that alters the exterior appearance of a Lot.

• Section 5.2: States that approvals or actions to be taken by the Association “shall be valid if given or taken by the Board.”

• Article VII, Section A(2): Grants the Board authority to exercise all powers and duties vested in the Association unless reserved to the membership.

• Article VII, Section B: Empowers the Board to “Review and approve any architectural plan for the building of any improvements on any Lots.”

• Exterior Appearance and Colors: Mandates that exterior appearance “shall blend with the natural surroundings and landscape.” It also states, “Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.” A note requires the owner to submit samples of materials for ACC approval.

• Roofs, Materials, and Pitches: Stipulates that “Metal roofs are permitted only with ACC approval” and that all pitched roof materials “shall promote a continuity of texture and color.”

Evidence Presented

• Petitioner’s Exhibit 13: A photograph of the Martins’ copper-colored roof. The ALJ’s decision noted that while the image showed a reflection, the photograph itself was “blurred.”

• Respondent’s Exhibit 26: The brochure containing the color of the copper-colored roof that the Board reviewed before its 2013 approval.

• Respondent’s Exhibit 7: Images of other reflective green and red metal roofs located in the Pinetop Country Club area, which were previously approved.

• Testimony: Board member Pat Knight’s familiarity with the appearance of copper-colored roofs was noted.

Administrative Law Judge’s Decision and Rationale

The petition was denied. The ALJ found that the Petitioners failed to establish by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving their claims by a “preponderance of the evidence,” defined as evidence that is more probably true than not. They failed to meet this standard.

2. Board Authority: The ALJ concluded that the governing documents allowed for the roof to be approved by either the Architectural Committee or the Board of Directors. The Board’s action was therefore valid.

3. Interpretation of Reflective Surfaces: The evidence established that the prohibition on “reflective surfaces” in the Architectural Guidelines applies to windows and doors. Roofs are addressed in a separate section of the guidelines. The existence of other approved shiny metal roofs further supported this interpretation.

4. Aesthetic Compliance: The Petitioners did not provide sufficient evidence to prove that the copper-colored roof failed to blend in with the natural surroundings.

Final Order

IT IS ORDERED that Petitioners’ petition is denied because Petitioners have not established that Respondent violated the Community Bylaws, Community CC&Rs, and the Community Architectural Guidelines when Respondent approved the Martins’ request to install the copper-colored roof.

The order was made binding unless a rehearing was requested within 30 days of service.

Patricia Davies-Brown vs. Starwood Estates Homeowners Association

Posted on September 14, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818039-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-09-14
Administrative Law Judge	Velva Moses-Thompson
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Patricia Davies-Brown, Individually and as Trustee of the Trust; BART A. BROWN, JR.; SCOTT R. DAVIES	Counsel	—
Respondent	Starwood Estates Homeowners Association	Counsel	Daniel Campbell & Kristopher L. Smith

Alleged Violations

CC&Rs; Bylaws; Architectural Guidelines

Outcome Summary

The Petitioners' request alleging that the Starwood Estates Homeowners Association violated community documents by approving a copper-colored metal roof was denied. The Administrative Law Judge concluded that Petitioners failed to establish the violation by a preponderance of the evidence, noting that the guidelines prohibiting reflective surfaces applied primarily to windows and doors, not roofs.

Why this result: Petitioners failed to establish by a preponderance of the evidence that Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Key Issues & Findings

Violation of Exterior Appearance and Colors provisions regarding copper-colored metal roof approval

Petitioners alleged that the HOA improperly approved a copper-colored metal roof because it constituted a reflective surface and did not blend with the natural surroundings, violating the community documents. The ALJ denied the petition, finding Petitioners failed to establish by a preponderance of the evidence that the HOA violated its documents, noting the reflective surfaces ban applied to windows and doors, not roofs, and the roof's appearance was acceptable.

Orders: Petitioners' petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Analytics Highlights

Topics: architectural control, CC&Rs enforcement, metal roof approval, reflective surfaces, burden of proof

Additional Citations:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

18F-H1818039-REL Decision – 653217.pdf

Uploaded 2025-10-08T07:05:27 (41.6 KB)

18F-H1818039-REL Decision – 659968.pdf

Uploaded 2025-10-08T07:05:28 (104.6 KB)

Briefing Document: Davies-Brown v. Starwood Estates HOA

Executive Summary

This document summarizes the administrative hearing and decision in case No. 18F-H1818039-REL, concerning a dispute between homeowners Patricia Davies-Brown, Bart A. Brown, Jr., and Scott R. Davies (the “Petitioners”) and the Starwood Estates Homeowners Association (the “Respondent”). The core of the dispute was the HOA Board of Directors’ 2013 approval of a copper-colored metal roof for homeowners Jeff and Karen Martin.

The Petitioners alleged this approval violated the community’s CC&Rs, Bylaws, and Architectural Guidelines. Their primary arguments were that the roof was an impermissible “reflective surface,” that it did not “blend with the natural surrounding and landscape,” and that the Board lacked the authority to approve it without prior review by the Architectural Committee (ACC) and without viewing a physical sample.

The Respondent defended the Board’s decision, arguing that the Board possessed the authority to grant such approvals. They contended the prohibition on reflective surfaces in the community guidelines applies specifically to windows and doors, not roofing. Furthermore, they asserted that the roof was aesthetically compliant and that other reflective metal roofs exist within the community.

The Administrative Law Judge (ALJ), Velva Moses-Thompson, ruled in favor of the Respondent. The decision, issued on September 14, 2018, denied the petition, concluding that the Petitioners failed to meet their burden of proof. The ALJ found that the Board had the authority to approve the roof, the ban on reflective surfaces did not apply to roofing, and the Petitioners did not establish that the roof failed to blend with its natural surroundings.

——————————————————————————–

Case Overview

• Case Name: Patricia Davies-Brown, et al. vs. Starwood Estates Homeowners Association

• Case Number: 18F-H1818039-REL

• Forum: Arizona Office of Administrative Hearings

• Presiding Judge: Velva Moses-Thompson, Administrative Law Judge

• Hearing Dates: July 10, 2018, and August 13, 2018

• Final Decision Date: September 14, 2018

Key Parties and Representatives

Name(s)

Representation / Contact

Petitioners

Patricia Davies-Brown, Bart A. Brown, Jr., Scott R. Davies

Appeared on behalf of themselves
9777 E Dreyfus Ave., Scottsdale, AZ 85260
Pat.davies-brown@cox.net

Respondent

Starwood Estates Homeowners Association

Kristopher L. Smith, Esq.
O’Connor & Campbell, P.C.
7955 S Priest Dr., Tempe, AZ 85284
kris.smith@occlaw.com

Homeowners

Jeff and Karen Martin

Owners of the property with the disputed roof at 8500 Skywood Drive, Pinetop, Arizona (Lot 40 of Starwood Estates).

Core Dispute: The Martin Residence Roof

The central conflict originated in the summer of 2013 when the Starwood Estates Board of Directors approved a request from Jeff and Karen Martin to install a copper-colored metal roof on their home. The approval was passed by a 5-1 vote. Petitioner Scott R. Davies was the sole board member who voted against the approval at that time.

The Board reviewed a brochure containing the roof’s color before granting approval but did not observe a physical sample. However, one Board member, Pat Knight, was reportedly familiar with the appearance of such roofs from a previous home she owned nearby. The petition challenging this 2013 decision was filed on or about March 26, 2018.

Petitioners’ Allegations and Arguments

The Petitioners filed their petition with the Arizona Department of Real Estate, alleging that the HOA violated community governing documents. Their case was built on three central questions:

1. Does the exterior appearance of the Martins’ aluminum copper-colored metal roof blend with the “natural surrounding and landscape” of Starwood Estates?

2. Does such roof constitute a “reflective surface”?

3. If the answer to (1) above is no and/or the answer to (2) above is yes, did the ACC and the Board of Starwood Estates erroneously violate the provisions of the CC&R’s and GUIDELINES in permitting the Martins to install such aluminum copper-colored metal roof…?

During the hearing, the Petitioners expanded on these points, arguing:

• Reflective Surface: The copper-colored roof was a prohibited reflective surface under the Architectural Guidelines.

• Aesthetic Incompatibility: The roof did not blend with the natural surroundings as required.

• Procedural Violations:

◦ The Board violated the CC&Rs by approving the roof without first viewing a physical sample of the material.

◦ The approval was invalid because it should have first been granted by the two-person Architectural Committee (ACC) appointed by the Board.

Respondent’s Defense and Arguments

The Starwood Estates HOA maintained that its approval of the Martin roof was proper and compliant with all governing documents. Their key arguments were:

• Board Authority: The HOA asserted that either the Board of Directors or the Architectural Committee had the authority to approve the roof.

• Interpretation of “Reflective Surfaces”: The Respondent argued that the prohibition on “reflective surfaces” within the Architectural Guidelines applies specifically to windows and doors, not to roofing, which is addressed in a separate section of the guidelines.

• Aesthetic Compliance: They contended the roof, while having a “shine,” was not a barred reflective surface and did blend in with the natural surroundings.

• Precedent: The HOA noted that several other metal roofs that are reflective had been previously approved in Starwood Estates. They submitted images of reflective green and red roofs in the Pinetop Country Club area as evidence.

Referenced Governing Documents

The decision cited specific sections from the HOA’s governing documents to adjudicate the dispute.

• Section 3.1.4: Requires prior written approval from the Architectural Committee for any work that alters the exterior appearance of a Lot.

• Section 5.2: States that approvals or actions to be taken by the Association “shall be valid if given or taken by the Board.”

• Article VII, Section A(2): Grants the Board authority to exercise all powers and duties vested in the Association unless reserved to the membership.

• Article VII, Section B: Empowers the Board to “Review and approve any architectural plan for the building of any improvements on any Lots.”

• Exterior Appearance and Colors: Mandates that exterior appearance “shall blend with the natural surroundings and landscape.” It also states, “Clear aluminum window and doorframes are not permitted, nor are reflective surfaces.” A note requires the owner to submit samples of materials for ACC approval.

• Roofs, Materials, and Pitches: Stipulates that “Metal roofs are permitted only with ACC approval” and that all pitched roof materials “shall promote a continuity of texture and color.”

Evidence Presented

• Petitioner’s Exhibit 13: A photograph of the Martins’ copper-colored roof. The ALJ’s decision noted that while the image showed a reflection, the photograph itself was “blurred.”

• Respondent’s Exhibit 26: The brochure containing the color of the copper-colored roof that the Board reviewed before its 2013 approval.

• Respondent’s Exhibit 7: Images of other reflective green and red metal roofs located in the Pinetop Country Club area, which were previously approved.

• Testimony: Board member Pat Knight’s familiarity with the appearance of copper-colored roofs was noted.

Administrative Law Judge’s Decision and Rationale

The petition was denied. The ALJ found that the Petitioners failed to establish by a preponderance of the evidence that the Respondent violated its CC&Rs, Bylaws, or Architectural Guidelines.

Conclusions of Law

1. Burden of Proof: The Petitioners bore the burden of proving their claims by a “preponderance of the evidence,” defined as evidence that is more probably true than not. They failed to meet this standard.

2. Board Authority: The ALJ concluded that the governing documents allowed for the roof to be approved by either the Architectural Committee or the Board of Directors. The Board’s action was therefore valid.

3. Interpretation of Reflective Surfaces: The evidence established that the prohibition on “reflective surfaces” in the Architectural Guidelines applies to windows and doors. Roofs are addressed in a separate section of the guidelines. The existence of other approved shiny metal roofs further supported this interpretation.

4. Aesthetic Compliance: The Petitioners did not provide sufficient evidence to prove that the copper-colored roof failed to blend in with the natural surroundings.

Final Order

IT IS ORDERED that Petitioners’ petition is denied because Petitioners have not established that Respondent violated the Community Bylaws, Community CC&Rs, and the Community Architectural Guidelines when Respondent approved the Martins’ request to install the copper-colored roof.

The order was made binding unless a rehearing was requested within 30 days of service.

Peter Biondi, Jr. vs. Lakeshore at Andersen Springs Homeowners

Posted on August 21, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-08-21
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Peter Biondi, Jr.	Counsel	—
Respondent	Lakeshore at Andersen Springs Homeowners Association	Counsel	Maria R. Kupillas

Alleged Violations

A.R.S. §§ 33-1242, 33-1243, Respondent’s Bylaw Article II, Section 3 and Article III, Sections 2 and 3, and Respondent’s CC&Rs Section 8.13

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.

Why this result: The Board's previous action of removing directors was illegal under A.R.S. § 33-1243 because director removal must be performed by a member vote. Because the HOA lacked a legal defense to the directors' challenge, the current petition failed to prove a violation when the sole remaining Director chose not to incur unnecessary fees contesting an unwinnable case, which was permissive under A.R.S. § 33-1242.

Key Issues & Findings

Alleged failure of the sole remaining Director to defend a prior petition challenging the board's removal of two directors.

Petitioner alleged the HOA violated governing documents and statutes when the remaining Director chose not to contest a prior Department petition filed by two removed Directors, resulting in their reinstatement. The ALJ found that the initial removal of the Directors by fellow Directors was illegal under A.R.S. § 33-1243(B) and (H), which reserves removal power to members. Because the HOA lacked a good legal defense, the remaining Director's decision not to defend the prior petition, based on legal advice, was permissive under A.R.S. § 33-1242 and not a violation.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1243
• A.R.S. § 33-1242
• A.R.S. § 32-2199(1)
• A.R.S. § 33-1803

Analytics Highlights

Topics: Condominium, HOA Director Removal, Board Authority, Condo Bylaws

Additional Citations:

• A.R.S. § 33-1243
• A.R.S. § 33-1242
• A.R.S. § 32-2199
• A.R.S. § 33-1248
• A.R.S. § 33-1803
• A.A.C. R2-19-119

Audio Overview

Decision Documents

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2025-10-08T07:05:54 (155.5 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Biondi v. Lakeshore at Andersen Springs HOA

Executive Summary

This document synthesizes the key findings of the Administrative Law Judge (ALJ) Decision in Case No. 18F-H1818048-REL, involving Petitioner Peter Biondi, Jr., and Respondent Lakeshore at Andersen Springs Homeowners Association (HOA). The ALJ ultimately denied the petition, concluding that the HOA’s actions were legally sound.

The core of the dispute centered on the decision by the HOA’s sole remaining director, Bonnie Henden, to reinstate two board members, Jim Luzzis and Jerry Dubasquier, who had been removed by their fellow directors for alleged violations of the association’s Covenants, Conditions, and Restrictions (CC&Rs). The petitioner argued that Ms. Henden’s refusal to defend the Board’s removal action in a subsequent legal challenge constituted a violation of the HOA’s governing documents and state law.

The ALJ’s decision rested on a critical legal principle: the supremacy of Arizona state law over an association’s internal bylaws. The dispositive finding was that the initial removal of Messrs. Luzzis and Dubasquier by their fellow board members was legally improper. Under Arizona Revised Statute (A.R.S.) § 33-1243, the power to remove a director is reserved exclusively for the association’s unit owners through a formal petition and voting process; a board of directors cannot remove its own members.

Consequently, Ms. Henden’s decision not to defend an indefensible action was deemed a prudent and permissible business judgment. Relying on legal advice from three separate attorneys and the permissive language of A.R.S. § 33-1242, which does not mandate a defense in litigation, her actions were found to have correctly avoided wasting the association’s funds on a legal case it was certain to lose.

Case Overview

• Case Name: Peter Biondi, Jr., vs. Lakeshore at Andersen Springs Homeowners Association

• Case Number: 18F-H1818048-REL

• Adjudicating Body: Office of Administrative Hearings, State of Arizona

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Date of Decision: August 21, 2018

Summary of Petition

On May 9, 2018, Petitioner Peter Biondi, Jr., a member of the Lakeshore at Andersen Springs HOA, filed a petition alleging that the HOA violated state statutes (A.R.S. §§ 33-1242 and 33-1243) and its own Bylaws and CC&Rs. The alleged violation occurred when the Board’s sole remaining member, Bonnie Henden, refused to defend the HOA against a petition filed by two former directors, Jim Luzzis and Jerry Dubasquier, who were contesting their removal from the Board. Instead of defending the removal, Ms. Henden reinstated them.

Background and Sequence of Events

1. Initial Complaint: Prior to January 2018, complaints were made that two serving directors, Jim Luzzis and Jerry Dubasquier, were violating Section 8.13 of the CC&Rs by renting their units as short-term Vacation Rental By Owner (“VRBOs”). This section mandates a minimum lease period of six months.

2. Board Action and Removal: The Board concluded that the two directors had violated the CC&Rs. At a contentious executive session on January 4, 2018, a majority of the five other directors voted to remove or disqualify Messrs. Luzzis and Dubasquier from their positions on the Board.

3. Legal Challenge: Messrs. Luzzis and Dubasquier filed a complaint with the Arizona Department of Real Estate to protest their removal.

4. Board Collapse: Following the removal, the Board’s composition changed dramatically. The petitioner and another director, Jeffrey Washburn, resigned “to restore calm in the community.” A third director was removed or resigned for non-payment of assessments. By March or April 2018, this series of departures left Bonnie Henden as the sole remaining director.

5. Henden’s Legal Consultation: As the sole director, Ms. Henden consulted the HOA’s attorney regarding the petition filed by Luzzis and Dubasquier. After this attorney learned that other board members had also potentially used their units as short-term rentals, he withdrew from representing the HOA. Ms. Henden subsequently retained new counsel and consulted a total of three different attorneys.

6. Decision Not to Defend: Based on the legal advice she received, Ms. Henden chose not to file an answer on behalf of the HOA to the petition filed by Luzzis and Dubasquier.

7. Reinstatement of Directors: The Department of Real Estate issued a decision in favor of Messrs. Luzzis and Dubasquier, ordering the HOA to pay their filing fee. Ms. Henden then officially reinstated them to the Board to complete their elected terms and cancelled the election that had been scheduled to choose their successors.

Dispositive Legal Analysis and Key Findings

The ALJ determined that the central issue was not the factual question of whether the directors had violated the CC&Rs, but the overriding legal question of whether the Board had the authority to remove them.

“The dispositive issue is not the factual issue of whether Messrs. Luzzis and Dubasquier violated CC&R Section 8.13 by using their units as short-term VRBOs, but the legal issue of whether the other directors on Respondent’s Board properly removed them from the Board…”

Supremacy of State Statute over Association Bylaws

The case highlighted a direct conflict between the HOA’s governing documents and Arizona state law. While the HOA’s bylaws suggested the Board could deem a director ineligible for violating governing documents, this provision was rendered void by state statute.

• A.R.S. § 33-1243 (Director Removal): This statute was the cornerstone of the ALJ’s decision. Its provisions unequivocally establish the process for director removal:

◦ Subsection (B): Explicitly prohibits a board of directors from acting on behalf of the association to “determine the qualifications, powers and duties or terms of office of board of directors members.”

◦ Subsection (H): States that its provisions apply “notwithstanding any provision of the declaration or bylaws to the contrary.” It specifies that only “unit owners who are eligible to vote” may remove a board member, and only by a “majority vote of those voting on the matter at a meeting of the unit owners.” It further details a petition process required to call such a special meeting.

• ALJ Conclusion on Removal: The Board’s action to remove Messrs. Luzzis and Dubasquier was a direct violation of A.R.S. § 33-1243. The Board did not follow the specific and unequivocal statutory requirements, which mandate that only the members who elected a director can remove that director. As such, the HOA “lacked any good legal defense to Messrs. Luzzis and Dubasquier’s challenge to their removal.”

Validation of Henden’s Actions

The ALJ found Ms. Henden’s decision not to defend the HOA was legally justified and prudent.

• A.R.S. § 33-1242 (Duty to Defend): This statute governs the powers of an association. It states that an association “may… defend or intervene in litigation or administrative proceedings.” The ALJ focused on the word “may,” interpreting it according to established legal precedent.

• Permissive, Not Mandatory: The use of “may” indicates permissive intent. Therefore, Ms. Henden was not statutorily required to contest the petition filed by Luzzis and Dubasquier.

• Prudent Business Judgment: Having consulted three attorneys who advised her that the HOA would likely not prevail due to the clear language of A.R.S. § 33-1243, her decision was deemed a reasonable measure to protect the association from incurring unnecessary legal fees for a losing cause. The judge noted:

“No statute requires a condominium association or a director to take an ill-advised act or to mount a defense of a previously taken ill-advised act that likely will fail on its merits.”

Final Order and Conclusion

Based on the finding that the original removal of the directors was illegal and that the subsequent decision not to defend the action was permissible, the judge issued a final, binding order.

IT IS ORDERED that Petitioner’s petition is denied.

The ultimate conclusion of this case establishes a critical precedent for HOA governance in Arizona: a condominium association’s Board of Directors has no authority to remove its own members. That power is reserved exclusively for the unit owners through a specific, statutorily defined process. Any attempt by a board to circumvent this process is legally invalid, and an officer’s decision to avoid defending such an improper action in court is a justifiable exercise of their duties.

Peter Biondi, Jr. vs. Lakeshore at Andersen Springs Homeowners

Posted on August 21, 2018 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1818048-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2018-08-21
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Peter Biondi, Jr.	Counsel	—
Respondent	Lakeshore at Andersen Springs Homeowners Association	Counsel	Maria R. Kupillas

Alleged Violations

A.R.S. §§ 33-1242, 33-1243, Respondent’s Bylaw Article II, Section 3 and Article III, Sections 2 and 3, and Respondent’s CC&Rs Section 8.13

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA's remaining Director acted permissibly and reasonably upon legal advice in refusing to defend a previous legal action, as the initial Board decision to remove fellow directors was contrary to mandatory statutory procedures outlined in A.R.S. § 33-1243, which requires removal by unit owners, not by the board.

Why this result: The Board's previous action of removing directors was illegal under A.R.S. § 33-1243 because director removal must be performed by a member vote. Because the HOA lacked a legal defense to the directors' challenge, the current petition failed to prove a violation when the sole remaining Director chose not to incur unnecessary fees contesting an unwinnable case, which was permissive under A.R.S. § 33-1242.

Key Issues & Findings

Alleged failure of the sole remaining Director to defend a prior petition challenging the board's removal of two directors.

Petitioner alleged the HOA violated governing documents and statutes when the remaining Director chose not to contest a prior Department petition filed by two removed Directors, resulting in their reinstatement. The ALJ found that the initial removal of the Directors by fellow Directors was illegal under A.R.S. § 33-1243(B) and (H), which reserves removal power to members. Because the HOA lacked a good legal defense, the remaining Director's decision not to defend the prior petition, based on legal advice, was permissive under A.R.S. § 33-1242 and not a violation.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

• A.R.S. § 33-1243
• A.R.S. § 33-1242
• A.R.S. § 32-2199(1)
• A.R.S. § 33-1803

Analytics Highlights

Topics: Condominium, HOA Director Removal, Board Authority, Condo Bylaws

Additional Citations:

• A.R.S. § 33-1243
• A.R.S. § 33-1242
• A.R.S. § 32-2199
• A.R.S. § 33-1248
• A.R.S. § 33-1803
• A.A.C. R2-19-119

Audio Overview

Decision Documents

18F-H1818048-REL Decision – 654904.pdf

Uploaded 2025-10-09T03:32:58 (155.5 KB)

Briefing Document: Analysis of Administrative Law Judge Decision in Biondi v. Lakeshore at Andersen Springs HOA

Executive Summary

This document synthesizes the key findings of the Administrative Law Judge (ALJ) Decision in Case No. 18F-H1818048-REL, involving Petitioner Peter Biondi, Jr., and Respondent Lakeshore at Andersen Springs Homeowners Association (HOA). The ALJ ultimately denied the petition, concluding that the HOA’s actions were legally sound.

The core of the dispute centered on the decision by the HOA’s sole remaining director, Bonnie Henden, to reinstate two board members, Jim Luzzis and Jerry Dubasquier, who had been removed by their fellow directors for alleged violations of the association’s Covenants, Conditions, and Restrictions (CC&Rs). The petitioner argued that Ms. Henden’s refusal to defend the Board’s removal action in a subsequent legal challenge constituted a violation of the HOA’s governing documents and state law.

The ALJ’s decision rested on a critical legal principle: the supremacy of Arizona state law over an association’s internal bylaws. The dispositive finding was that the initial removal of Messrs. Luzzis and Dubasquier by their fellow board members was legally improper. Under Arizona Revised Statute (A.R.S.) § 33-1243, the power to remove a director is reserved exclusively for the association’s unit owners through a formal petition and voting process; a board of directors cannot remove its own members.

Consequently, Ms. Henden’s decision not to defend an indefensible action was deemed a prudent and permissible business judgment. Relying on legal advice from three separate attorneys and the permissive language of A.R.S. § 33-1242, which does not mandate a defense in litigation, her actions were found to have correctly avoided wasting the association’s funds on a legal case it was certain to lose.

Case Overview

• Case Name: Peter Biondi, Jr., vs. Lakeshore at Andersen Springs Homeowners Association

• Case Number: 18F-H1818048-REL

• Adjudicating Body: Office of Administrative Hearings, State of Arizona

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Date of Decision: August 21, 2018

Summary of Petition

On May 9, 2018, Petitioner Peter Biondi, Jr., a member of the Lakeshore at Andersen Springs HOA, filed a petition alleging that the HOA violated state statutes (A.R.S. §§ 33-1242 and 33-1243) and its own Bylaws and CC&Rs. The alleged violation occurred when the Board’s sole remaining member, Bonnie Henden, refused to defend the HOA against a petition filed by two former directors, Jim Luzzis and Jerry Dubasquier, who were contesting their removal from the Board. Instead of defending the removal, Ms. Henden reinstated them.

Background and Sequence of Events

1. Initial Complaint: Prior to January 2018, complaints were made that two serving directors, Jim Luzzis and Jerry Dubasquier, were violating Section 8.13 of the CC&Rs by renting their units as short-term Vacation Rental By Owner (“VRBOs”). This section mandates a minimum lease period of six months.

2. Board Action and Removal: The Board concluded that the two directors had violated the CC&Rs. At a contentious executive session on January 4, 2018, a majority of the five other directors voted to remove or disqualify Messrs. Luzzis and Dubasquier from their positions on the Board.

3. Legal Challenge: Messrs. Luzzis and Dubasquier filed a complaint with the Arizona Department of Real Estate to protest their removal.

4. Board Collapse: Following the removal, the Board’s composition changed dramatically. The petitioner and another director, Jeffrey Washburn, resigned “to restore calm in the community.” A third director was removed or resigned for non-payment of assessments. By March or April 2018, this series of departures left Bonnie Henden as the sole remaining director.

5. Henden’s Legal Consultation: As the sole director, Ms. Henden consulted the HOA’s attorney regarding the petition filed by Luzzis and Dubasquier. After this attorney learned that other board members had also potentially used their units as short-term rentals, he withdrew from representing the HOA. Ms. Henden subsequently retained new counsel and consulted a total of three different attorneys.

6. Decision Not to Defend: Based on the legal advice she received, Ms. Henden chose not to file an answer on behalf of the HOA to the petition filed by Luzzis and Dubasquier.

7. Reinstatement of Directors: The Department of Real Estate issued a decision in favor of Messrs. Luzzis and Dubasquier, ordering the HOA to pay their filing fee. Ms. Henden then officially reinstated them to the Board to complete their elected terms and cancelled the election that had been scheduled to choose their successors.

Dispositive Legal Analysis and Key Findings

The ALJ determined that the central issue was not the factual question of whether the directors had violated the CC&Rs, but the overriding legal question of whether the Board had the authority to remove them.

“The dispositive issue is not the factual issue of whether Messrs. Luzzis and Dubasquier violated CC&R Section 8.13 by using their units as short-term VRBOs, but the legal issue of whether the other directors on Respondent’s Board properly removed them from the Board…”

Supremacy of State Statute over Association Bylaws

The case highlighted a direct conflict between the HOA’s governing documents and Arizona state law. While the HOA’s bylaws suggested the Board could deem a director ineligible for violating governing documents, this provision was rendered void by state statute.

• A.R.S. § 33-1243 (Director Removal): This statute was the cornerstone of the ALJ’s decision. Its provisions unequivocally establish the process for director removal:

◦ Subsection (B): Explicitly prohibits a board of directors from acting on behalf of the association to “determine the qualifications, powers and duties or terms of office of board of directors members.”

◦ Subsection (H): States that its provisions apply “notwithstanding any provision of the declaration or bylaws to the contrary.” It specifies that only “unit owners who are eligible to vote” may remove a board member, and only by a “majority vote of those voting on the matter at a meeting of the unit owners.” It further details a petition process required to call such a special meeting.

• ALJ Conclusion on Removal: The Board’s action to remove Messrs. Luzzis and Dubasquier was a direct violation of A.R.S. § 33-1243. The Board did not follow the specific and unequivocal statutory requirements, which mandate that only the members who elected a director can remove that director. As such, the HOA “lacked any good legal defense to Messrs. Luzzis and Dubasquier’s challenge to their removal.”

Validation of Henden’s Actions

The ALJ found Ms. Henden’s decision not to defend the HOA was legally justified and prudent.

• A.R.S. § 33-1242 (Duty to Defend): This statute governs the powers of an association. It states that an association “may… defend or intervene in litigation or administrative proceedings.” The ALJ focused on the word “may,” interpreting it according to established legal precedent.

• Permissive, Not Mandatory: The use of “may” indicates permissive intent. Therefore, Ms. Henden was not statutorily required to contest the petition filed by Luzzis and Dubasquier.

• Prudent Business Judgment: Having consulted three attorneys who advised her that the HOA would likely not prevail due to the clear language of A.R.S. § 33-1243, her decision was deemed a reasonable measure to protect the association from incurring unnecessary legal fees for a losing cause. The judge noted:

“No statute requires a condominium association or a director to take an ill-advised act or to mount a defense of a previously taken ill-advised act that likely will fail on its merits.”

Final Order and Conclusion

Based on the finding that the original removal of the directors was illegal and that the subsequent decision not to defend the action was permissible, the judge issued a final, binding order.

IT IS ORDERED that Petitioner’s petition is denied.

The ultimate conclusion of this case establishes a critical precedent for HOA governance in Arizona: a condominium association’s Board of Directors has no authority to remove its own members. That power is reserved exclusively for the unit owners through a specific, statutorily defined process. Any attempt by a board to circumvent this process is legally invalid, and an officer’s decision to avoid defending such an improper action in court is a justifiable exercise of their duties.

Debbie Westerman v. Bridgewood Townhomes

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

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&R § 5(G)

Outcome Summary

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

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

Key Issues & Findings

Unreasonable denial of architectural request to build a courtyard wall

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Wall Construction, CMU block, Architectural Standard

Additional Citations:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• A.R.S. § 32-2199.02(B)
• A.R.S. § 32-2199.04
• A.R.S. § 41-1092.09
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

18F-H1818028-REL Decision – 631265.pdf

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

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

Executive Summary

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

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

1. Case Overview and Core Dispute

• Parties:

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

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

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

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

2. Chronology of the Dispute

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

Oct 25, 2017

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

Oct 25, 2017

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

Oct 25, 2017

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

Nov 29, 2017

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

Dec 28, 2017

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

Jan 2, 2018

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

Jan 8, 2018

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

Jan 23, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Administrative Law Judge’s Conclusions and Final Order

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

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

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

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

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

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

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

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

Debbie Westerman v. Bridgewood Townhomes

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

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&R § 5(G)

Outcome Summary

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

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

Key Issues & Findings

Unreasonable denial of architectural request to build a courtyard wall

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

Topics: HOA, CC&R, Architectural Review, Wall Construction, CMU block, Architectural Standard

Additional Citations:

• A.R.S. § 32-2199(B)
• A.R.S. § 33-1803
• A.R.S. § 41-1092.07(G)(2)
• A.A.C. R2-19-119(A)
• A.A.C. R2-19-119(B)(1)
• A.A.C. R2-19-119(B)(2)
• A.R.S. § 32-2199.02(B)
• A.R.S. § 32-2199.04
• A.R.S. § 41-1092.09
• Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
• MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
• BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
• Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
• Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

18F-H1818028-REL Decision – 631265.pdf

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

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

Executive Summary

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

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

1. Case Overview and Core Dispute

• Parties:

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

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

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

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

2. Chronology of the Dispute

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

Oct 25, 2017

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

Oct 25, 2017

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

Oct 25, 2017

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

Nov 29, 2017

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

Dec 28, 2017

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

Jan 2, 2018

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

Jan 8, 2018

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

Jan 23, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Administrative Law Judge’s Conclusions and Final Order

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

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

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

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

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

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

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

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

Charles Mandela vs. Blue Ridge Estates Homeowner Association

Posted on December 6, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817006-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-12-06
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Charles Mandela	Counsel	—
Respondent	Blue Ridge Estates Homeowner Association	Counsel	Brian C. Axt, Esq.

Alleged Violations

CC&Rs § 3.1(a); Architectural Committee Aligned Standard 3(D)

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA did not violate its CC&Rs by allowing play structures on properties that already contained a detached garage or shed, because play structures are not easily convertible into a second residence, which was the underlying concern of the relevant CC&R section.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated CC&R § 3.1. The ALJ determined that the HOA correctly clarified the status of play structures through an amendment to the Architectural Committee's regulations.

Key Issues & Findings

Alleged violation of CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) regarding allowing play structures (swing sets, treehouses) when another detached structure (garage or shed) is present.

Petitioner alleged that the Respondent HOA violated CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) by permitting members to construct play structures (swingsets, treehouses, etc.) on properties that already contained one detached structure (garage or shed), arguing that the rules allowed only one detached structure of any type.

Orders: Petitioner's petition is denied because he failed to establish that CC&R § 3.1 prohibits play structures under any circumstances. All play structures that the Architectural Committee has previously approved are allowed to remain, and the Architectural Committee may consider and grant future Play Structure Approval Requests.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

Topics: HOA governance, CC&R interpretation, detached structures, play structures, Architectural Committee regulations, burden of proof

Additional Citations:

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

Audio Overview

Decision Documents

18F-H1817006-REL Decision – 604710.pdf

Uploaded 2025-10-08T07:03:18 (155.4 KB)

Briefing Document: Mandela v. Blue Ridge Estates Homeowner Association (No. 18F-H1817006-REL)

Executive Summary

This document synthesizes the findings of an Administrative Law Judge (ALJ) decision regarding a dispute between a homeowner, Charles Mandela (“Petitioner”), and the Blue Ridge Estates Homeowner Association (“Respondent”). The core issue was whether the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by permitting homeowners to install play structures (e.g., swing sets, treehouses) on lots that already contained another detached structure, such as a garage or shed.

The Petitioner argued that the HOA had historically enforced a strict “one detached structure” rule and that its recent allowance of play structures constituted a violation of CC&R § 3.1. In contrast, the Respondent contended that the underlying intent of the CC&Rs was to prevent secondary residential dwellings, not to prohibit recreational structures consistent with a family-oriented community. The HOA asserted it had properly amended its Architectural Committee regulations, not the CC&Rs, to clarify this distinction.

The ALJ ruled decisively in favor of the Respondent HOA. The central finding was that the intent of the restrictive covenant was to maintain the single-family residential character of the community. Because play structures cannot be easily converted into secondary residences, they are not inconsistent with this intent. The ALJ concluded that the HOA was not required to amend the CC&Rs (which requires a 75% member vote) but acted within its authority to amend its rules and regulations via a simple board vote. The Petitioner’s petition was denied.

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Core Allegation: The Petitioner alleged that the Respondent HOA violated CC&R § 3.1(a) and Architectural Committee Aligned Standard 3(D) by allowing members to build play structures, swing sets, or treehouses on properties that already had another detached structure like a garage or shed.

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

The Petitioner’s case was built on the premise of a long-standing, strict interpretation of the “one detached structure” rule.

• Core Argument: For 18 years, the Respondent interpreted CC&R § 3.1 to permit only one detached structure on any given lot, regardless of its type.

• Evidence and Testimony:

◦ Historical Enforcement: Testified that between 2002 and 2016, the HOA enforced this rule by removing nine non-compliant structures, including a gazebo, a playhouse, an observation deck, and a zipline structure.

◦ 2006 Legal Opinion: Submitted a February 7, 2006, letter from the law firm Carpenter Hazlewood, PLC, which opined on the ambiguity of CC&R § 3.1. The letter stated, “It still appears that only one structure (garage or shed) is permitted,” and supported the HOA’s ability to “enforce the ‘one detached structure’ requirement.” The letter did not specifically mention play structures.

◦ Invalid Approval Form: Presented a “Play Structure Approval Request” form he had drafted while on the board. This form incorrectly stated that the Board of Directors had voted on June 25, 2016, “to adopt changes to the CCR’s [sic], which will allow play structures.” Petitioner argued this was invalid because changing the CC&Rs requires a 75% vote of the membership, which was not obtained.

◦ Ancillary Documents: Submitted documents related to a housing discrimination claim filed by the HOA’s current president, Joseph Hancock, and a letter concerning another member. Petitioner testified these matters involved play structures, though the documents themselves did not mention CC&R § 3.1.

Respondent’s Position (Blue Ridge Estates HOA)

The Respondent’s defense centered on the purpose of the CC&Rs and its authority as a board to clarify and amend its own rules and regulations.

• Core Argument: The HOA did not violate the CC&Rs because the intent of the relevant articles is to prohibit secondary residential dwellings, not recreational structures suitable for a community intended to be a “uniquely planned recreation property.”

• Evidence and Testimony:

◦ Community Status: There are currently 16 swingsets or play structures within the 193-lot development. The HOA president, Joseph Hancock, testified he has a swingset used by his children, grandchildren, and neighbors.

◦ Legal Counsel: The HOA retained the firm of Poli & Ball, PLC, which opined that because the community is for recreation and family use, “[p]lay structures are perfectly consistent with recreation and family use.” The firm advised that the Architectural Committee’s regulations could be changed to reflect this without amending the CC&Rs. Another law firm, Carpenter Hazlewood, generally agreed with this opinion.

◦ Correction of Clerical Error: Mr. Hancock testified that the form submitted by the Petitioner contained a typographical error. The board’s intent in its June 25, 2016, vote was to amend the Architectural Committee’s regulations, not the CC&Rs.

◦ Board Meeting Minutes: The HOA submitted minutes from board meetings in December 2016 and October 2017. These minutes document the board’s discovery of the error on the website form and subsequent votes to formally clarify that the change was to the rules and regulations, not the CC&Rs, thereby ratifying its decision.

◦ Amended Approval Form: Respondent submitted the corrected “Play Structure Approval Request” form, which states, “Per the modified Rules and Regulations dated April 6, 2016, this form must be submitted to Architectural Committee for approval of any Play Structure.”

Governing Rules and Covenants

The dispute hinged on the interpretation and interplay of several key provisions in the community’s governing documents.

Document / Section

Key Provision

CC&R § 3.1

“No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage… No garage or shed shall be built prior to the issuance of a Coconino County building permit for the construction of a Single Family Residence.”

Architectural Regulation 3(D)

“One detached structure may, with Architectural Committee approval, be constructed on a property. The residence must be constructed and completed before the detached structure is built.”

CC&R § 4.2

“By a majority vote of the Board, the Association may, from time to time… adopt, amend and repeal rules and regulations to be known as the ‘Rules and Regulations.’”

CC&R § 12.2

Amending the Declaration of CC&Rs requires “the affirmative vote… or written consent of Members owning at least seventy-five percent (75%) of all Lots.”

Administrative Law Judge’s Findings and Legal Rationale

The ALJ found that the Petitioner failed to meet his burden of proof and that the Respondent acted properly within its authority.

• Intent of the Covenant: The Judge determined that CC&R Article III is fundamentally “concerned with keeping Respondent single-family residential by prohibiting structures and vehicles that could be used as a second residential dwelling on a lot.” This interpretation is supported by other rules in the article prohibiting mobile homes and clarifying that “If you can live/sleep in it, you cannot park it” in the development.

• Status of Play Structures: The decision concludes that a play structure “cannot be easily converted into a second residence.” Therefore, permitting a play structure in addition to a garage or shed is not inconsistent with the primary purpose of CC&R § 3.1.

• Board Authority vs. Member Vote: Because allowing play structures was not inconsistent with the CC&Rs, the Respondent was not required to amend the CC&Rs through a 75% member vote. Instead, the Board was empowered by CC&R § 4.2 to “amend the Architectural Committee’s regulations to provide clarification on the status of play structures” through a majority vote of the Board.

• History of Enforcement: The Judge found that the Petitioner failed to establish a uniform history of enforcement against play structures. Rather, “it appears that the status of play structures, swingsets, and tree houses has been unsettled and the subject of some contention,” partly due to the Petitioner’s own advocacy.

• Conclusion: The Respondent properly resolved the ambiguity by amending its regulations.

Final Order and Implications

• Decision: The petition was denied because the Petitioner did not establish that CC&R § 3.1 prohibits play structures under any circumstances.

• Outcome for the Community:

1. The HOA’s amendment of its rules to explicitly permit play structures was deemed valid.

2. All play structures previously approved by the Architectural Committee are allowed to remain on members’ properties.

3. The Architectural Committee is authorized to consider and approve future Play Structure Approval Requests that are submitted in accordance with the established regulations.

Charles Mandela vs. Blue Ridge Estates Homeowner Association

Posted on December 6, 2017 by jeremy@yourazhoaattorney.com

Case Summary

Case ID	18F-H1817006-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-12-06
Administrative Law Judge	Diane Mihalsky
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Charles Mandela	Counsel	—
Respondent	Blue Ridge Estates Homeowner Association	Counsel	Brian C. Axt, Esq.

Alleged Violations

CC&Rs § 3.1(a); Architectural Committee Aligned Standard 3(D)

Outcome Summary

The Administrative Law Judge denied the homeowner's petition, finding that the HOA did not violate its CC&Rs by allowing play structures on properties that already contained a detached garage or shed, because play structures are not easily convertible into a second residence, which was the underlying concern of the relevant CC&R section.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated CC&R § 3.1. The ALJ determined that the HOA correctly clarified the status of play structures through an amendment to the Architectural Committee's regulations.

Key Issues & Findings

Alleged violation of CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) regarding allowing play structures (swing sets, treehouses) when another detached structure (garage or shed) is present.

Petitioner alleged that the Respondent HOA violated CC&Rs § 3.1(a) and Architectural Committee regulation 3(D) by permitting members to construct play structures (swingsets, treehouses, etc.) on properties that already contained one detached structure (garage or shed), arguing that the rules allowed only one detached structure of any type.

Orders: Petitioner's petition is denied because he failed to establish that CC&R § 3.1 prohibits play structures under any circumstances. All play structures that the Architectural Committee has previously approved are allowed to remain, and the Architectural Committee may consider and grant future Play Structure Approval Requests.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

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

Analytics Highlights

Topics: HOA governance, CC&R interpretation, detached structures, play structures, Architectural Committee regulations, burden of proof

Additional Citations:

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

Audio Overview

Decision Documents

18F-H1817006-REL Decision – 604710.pdf

Uploaded 2025-10-09T03:32:05 (155.4 KB)

Briefing Document: Mandela v. Blue Ridge Estates Homeowner Association (No. 18F-H1817006-REL)

Executive Summary

This document synthesizes the findings of an Administrative Law Judge (ALJ) decision regarding a dispute between a homeowner, Charles Mandela (“Petitioner”), and the Blue Ridge Estates Homeowner Association (“Respondent”). The core issue was whether the HOA violated its Covenants, Conditions, and Restrictions (CC&Rs) by permitting homeowners to install play structures (e.g., swing sets, treehouses) on lots that already contained another detached structure, such as a garage or shed.

The Petitioner argued that the HOA had historically enforced a strict “one detached structure” rule and that its recent allowance of play structures constituted a violation of CC&R § 3.1. In contrast, the Respondent contended that the underlying intent of the CC&Rs was to prevent secondary residential dwellings, not to prohibit recreational structures consistent with a family-oriented community. The HOA asserted it had properly amended its Architectural Committee regulations, not the CC&Rs, to clarify this distinction.

The ALJ ruled decisively in favor of the Respondent HOA. The central finding was that the intent of the restrictive covenant was to maintain the single-family residential character of the community. Because play structures cannot be easily converted into secondary residences, they are not inconsistent with this intent. The ALJ concluded that the HOA was not required to amend the CC&Rs (which requires a 75% member vote) but acted within its authority to amend its rules and regulations via a simple board vote. The Petitioner’s petition was denied.

Case Overview

• Case Number: 18F-H1817006-REL

• Parties:

◦ Petitioner: Charles Mandela

◦ Respondent: Blue Ridge Estates Homeowner Association

• Hearing Date: November 28, 2017

• Presiding Judge: Administrative Law Judge Diane Mihalsky

• Core Allegation: The Petitioner alleged that the Respondent HOA violated CC&R § 3.1(a) and Architectural Committee Aligned Standard 3(D) by allowing members to build play structures, swing sets, or treehouses on properties that already had another detached structure like a garage or shed.

Central Arguments and Presented Evidence

Petitioner’s Position (Charles Mandela)

The Petitioner’s case was built on the premise of a long-standing, strict interpretation of the “one detached structure” rule.

• Core Argument: For 18 years, the Respondent interpreted CC&R § 3.1 to permit only one detached structure on any given lot, regardless of its type.

• Evidence and Testimony:

◦ Historical Enforcement: Testified that between 2002 and 2016, the HOA enforced this rule by removing nine non-compliant structures, including a gazebo, a playhouse, an observation deck, and a zipline structure.

◦ 2006 Legal Opinion: Submitted a February 7, 2006, letter from the law firm Carpenter Hazlewood, PLC, which opined on the ambiguity of CC&R § 3.1. The letter stated, “It still appears that only one structure (garage or shed) is permitted,” and supported the HOA’s ability to “enforce the ‘one detached structure’ requirement.” The letter did not specifically mention play structures.

◦ Invalid Approval Form: Presented a “Play Structure Approval Request” form he had drafted while on the board. This form incorrectly stated that the Board of Directors had voted on June 25, 2016, “to adopt changes to the CCR’s [sic], which will allow play structures.” Petitioner argued this was invalid because changing the CC&Rs requires a 75% vote of the membership, which was not obtained.

◦ Ancillary Documents: Submitted documents related to a housing discrimination claim filed by the HOA’s current president, Joseph Hancock, and a letter concerning another member. Petitioner testified these matters involved play structures, though the documents themselves did not mention CC&R § 3.1.

Respondent’s Position (Blue Ridge Estates HOA)

The Respondent’s defense centered on the purpose of the CC&Rs and its authority as a board to clarify and amend its own rules and regulations.

• Core Argument: The HOA did not violate the CC&Rs because the intent of the relevant articles is to prohibit secondary residential dwellings, not recreational structures suitable for a community intended to be a “uniquely planned recreation property.”

• Evidence and Testimony:

◦ Community Status: There are currently 16 swingsets or play structures within the 193-lot development. The HOA president, Joseph Hancock, testified he has a swingset used by his children, grandchildren, and neighbors.

◦ Legal Counsel: The HOA retained the firm of Poli & Ball, PLC, which opined that because the community is for recreation and family use, “[p]lay structures are perfectly consistent with recreation and family use.” The firm advised that the Architectural Committee’s regulations could be changed to reflect this without amending the CC&Rs. Another law firm, Carpenter Hazlewood, generally agreed with this opinion.

◦ Correction of Clerical Error: Mr. Hancock testified that the form submitted by the Petitioner contained a typographical error. The board’s intent in its June 25, 2016, vote was to amend the Architectural Committee’s regulations, not the CC&Rs.

◦ Board Meeting Minutes: The HOA submitted minutes from board meetings in December 2016 and October 2017. These minutes document the board’s discovery of the error on the website form and subsequent votes to formally clarify that the change was to the rules and regulations, not the CC&Rs, thereby ratifying its decision.

◦ Amended Approval Form: Respondent submitted the corrected “Play Structure Approval Request” form, which states, “Per the modified Rules and Regulations dated April 6, 2016, this form must be submitted to Architectural Committee for approval of any Play Structure.”

Governing Rules and Covenants

The dispute hinged on the interpretation and interplay of several key provisions in the community’s governing documents.

Document / Section

Key Provision

CC&R § 3.1

“No building or structure shall be erected or maintained separate from the Single Family Residence located on any Lot, other than a garage… No garage or shed shall be built prior to the issuance of a Coconino County building permit for the construction of a Single Family Residence.”

Architectural Regulation 3(D)

“One detached structure may, with Architectural Committee approval, be constructed on a property. The residence must be constructed and completed before the detached structure is built.”

CC&R § 4.2

“By a majority vote of the Board, the Association may, from time to time… adopt, amend and repeal rules and regulations to be known as the ‘Rules and Regulations.’”

CC&R § 12.2

Amending the Declaration of CC&Rs requires “the affirmative vote… or written consent of Members owning at least seventy-five percent (75%) of all Lots.”

Administrative Law Judge’s Findings and Legal Rationale

The ALJ found that the Petitioner failed to meet his burden of proof and that the Respondent acted properly within its authority.

• Intent of the Covenant: The Judge determined that CC&R Article III is fundamentally “concerned with keeping Respondent single-family residential by prohibiting structures and vehicles that could be used as a second residential dwelling on a lot.” This interpretation is supported by other rules in the article prohibiting mobile homes and clarifying that “If you can live/sleep in it, you cannot park it” in the development.

• Status of Play Structures: The decision concludes that a play structure “cannot be easily converted into a second residence.” Therefore, permitting a play structure in addition to a garage or shed is not inconsistent with the primary purpose of CC&R § 3.1.

• Board Authority vs. Member Vote: Because allowing play structures was not inconsistent with the CC&Rs, the Respondent was not required to amend the CC&Rs through a 75% member vote. Instead, the Board was empowered by CC&R § 4.2 to “amend the Architectural Committee’s regulations to provide clarification on the status of play structures” through a majority vote of the Board.

• History of Enforcement: The Judge found that the Petitioner failed to establish a uniform history of enforcement against play structures. Rather, “it appears that the status of play structures, swingsets, and tree houses has been unsettled and the subject of some contention,” partly due to the Petitioner’s own advocacy.

• Conclusion: The Respondent properly resolved the ambiguity by amending its regulations.

Final Order and Implications

• Decision: The petition was denied because the Petitioner did not establish that CC&R § 3.1 prohibits play structures under any circumstances.

• Outcome for the Community:

1. The HOA’s amendment of its rules to explicitly permit play structures was deemed valid.

2. All play structures previously approved by the Architectural Committee are allowed to remain on members’ properties.

3. The Architectural Committee is authorized to consider and approve future Play Structure Approval Requests that are submitted in accordance with the established regulations.