Tag Archives: 2019

Tom Barrs v. Desert Ranch Homeowners Association

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Case Summary

Case ID 19F-H1918037-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-09-12
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Tom Barrs Counsel Jonathan A. Dessaules
Respondent Desert Ranch Homeowners Association Counsel B. Austin Baillio

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.

Key Issues & Findings

Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.

The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.

Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 1-243
  • ARIZ. ADMIN. CODE R2-19-107
  • ARIZ. REV. STAT. § 33-1804

Audio Overview

Decision Documents

19F-H1918037-REL-RHG Decision – 737525.pdf

Uploaded 2025-10-09T03:33:57 (176.7 KB)





Briefing Doc – 19F-H1918037-REL-RHG


Briefing Document: Barrs v. Desert Ranch Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The central issue was whether the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to adequately fulfill a records request submitted by the Petitioner on November 1, 2018.

The initial hearing on March 21, 2019, resulted in an April 10, 2019, decision in favor of the Association. The ALJ concluded that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and thus the Association’s partial response (a summary table) did not constitute a statutory violation.

Following a successful appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence demonstrated that the Petitioner had followed prior express instructions from the Association regarding who to contact for records requests. Consequently, the ALJ issued a new decision on September 12, 2019, reversing the original order. The final ruling found the Association in violation of A.R.S. § 33-1805. The Association was ordered to reimburse the Petitioner’s $500 filing fee and was assessed a civil penalty of $500.

Case Overview

Case Numbers

No. 19F-H1918037-REL (Initial Decision)
No. 19F-H1918037-REL-RHG (Rehearing Decision)

Petitioner

Tom Barrs, a property owner and member of the Association.

Respondent

Desert Ranch Homeowners Association, Scottsdale, Arizona.

Central Issue

Whether the Association violated A.R.S. § 33-1805 by failing to fulfill a records request for Environmental Design Committee (EDC) actions, requests, and approvals.

Initial Petition

Filed by Tom Barrs on December 17, 2018.

Initial Hearing

March 21, 2019, before ALJ Jenna Clark.

Rehearing

August 27, 2019, before ALJ Jenna Clark.

Final Outcome

Petition granted in favor of Tom Barrs. The Association was found in violation of state law, ordered to reimburse the filing fee, and fined.

Key Individuals and Entities

Role / Affiliation

Tom Barrs

Petitioner; homeowner in the Desert Ranch subdivision.

Desert Ranch HOA

Respondent; homeowners’ association.

Jenna Clark

Administrative Law Judge, Office of Administrative Hearings.

Brian Schoeffler

Chairman of the Association’s Environmental Design Committee (EDC); appeared on behalf of the Association.

Catherine Overby

President of the Association’s Board of Directors.

Lori Loch-Lee

Vice President of Client Services at Associated Asset Management (AAM), the Association’s accounting/management company.

Jonathan Dessaules, Esq.

Attorney who appeared on behalf of the Petitioner at the rehearing.

The Records Request and Subsequent Dispute

The Initial Request

On November 1, 2018, at 9:40 p.m., Petitioner submitted an electronic records request to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee. The text of the request was as follows:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

The Association’s Response and Petitioner’s Follow-Up

• November 2, 2018: Lori Loch-Lee from AAM notified the Petitioner she would forward his request to all Board members, noting that AAM was only the Association’s accounting firm.

• November 18, 2018: The Petitioner received a summary table listing some EDC actions, not the complete set of communications and documents requested. At this time, he was advised by Brian Schoeffler that he “needed to copy all Board members on records requests.”

• March 6, 2019: The Petitioner sent a follow-up email, accusing the Association of willful failure and clarifying the specific records he sought beyond the summary table, including “copies of the communications (letters, emails, and application forms) relating to Environmental Design Review (EDC) submissions, requests, complaints and approvals (or denials).”

• March 11, 2019: Mr. Schoeffler replied, arguing that the request had been complied with on November 18, 2018, and directed the Petitioner to “submit a new request” for the additional information.

• March 17, 2019: Mr. Schoeffler reiterated that the original request was only sent to two of four Board members and stated that providing additional documents could be “interpreted as an admission of guilt.”

As of the rehearing date (August 27, 2019), the Petitioner had still not received all the documentation requested on November 1, 2018.

Legal Proceedings and Rulings

Initial Hearing and Decision (April 10, 2019)

In the first hearing, the dispute centered on the validity of the request submission and the adequacy of the Association’s response.

Arguments:

• Petitioner (Barrs): Argued the Association acted in bad faith and willfully failed to fulfill the request, noting a similar dispute had been previously adjudicated. He was concerned with the completeness of the response, not its timeliness.

• Respondent (HOA): Argued it had complied with the request by providing a summary table, consistent with its handling of a previous dispute with the Petitioner. Mr. Schoeffler testified that the response was untimely (provided on the 11th business day) but asserted it was otherwise sufficient.

ALJ Conclusion: The Judge ruled in favor of the Association, denying the Petitioner’s petition. The key finding was that the Petitioner had failed to properly submit his request.

“Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”

The decision also noted that the statute does not legally obligate an HOA to email copies of records.

Rehearing and Final Decision (September 12, 2019)

After the Petitioner’s appeal was granted, a rehearing introduced new evidence that fundamentally changed the outcome.

New Evidence and Concessions:

• July 19, 2017 Instruction: Evidence showed Association President Catherine Overby had previously appointed Brian Schoeffler as the Petitioner’s “primary records request contact.”

• July 18, 2018 Instruction: Evidence showed Ms. Overby had also instructed the Petitioner to direct requests to the management company, AAM.

• Association Concessions: The Respondent conceded that its governing documents do not require all Board members to be copied on records requests and that its own bylaws regarding submission forms are not adhered to or enforced.

ALJ’s Reversed Conclusion: The Judge reversed the prior decision and granted the Petitioner’s petition. The new evidence proved the Petitioner had followed express instructions from the Association.

“Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”

The Judge concluded that the partial response was a clear violation of the law.

“Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”

Final Order and Penalties

The Administrative Law Judge’s Final Order on September 12, 2019, which is binding on the parties, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted.

2. Filing Fee Reimbursement: The Respondent (Desert Ranch HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.

3. Civil Penalty: The Respondent was ordered to pay a civil penalty of $500.00 to the Arizona Department of Real Estate.


Tom Barrs v. Desert Ranch Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918037-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-09-12
Administrative Law Judge Jenna Clark
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $500.00

Parties & Counsel

Petitioner Tom Barrs Counsel Jonathan A. Dessaules
Respondent Desert Ranch Homeowners Association Counsel B. Austin Baillio

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge concluded that the HOA violated ARIZ. REV. STAT. § 33-1805 by failing to provide the full requested documentation relating to EDC actions and communications. The Petitioner's request for relief was granted, resulting in the reimbursement of the $500 filing fee and the imposition of a $500 civil penalty against the HOA.

Key Issues & Findings

Whether Desert Ranch Homeowners Association (Respondent) violated A.R.S. § 33-1805 by failing to fulfill a records request.

The Association violated A.R.S. § 33-1805 by failing to fully comply with Petitioner's specific request for EDC records (submissions, requests, and approvals) by providing only a summary table instead of the totality of requested communications within the statutory deadline.

Orders: Petitioner's petition granted. Respondent ordered to reimburse Petitioner's $500.00 filing fee (ARIZ. REV. STAT. § 32-2199.01) and tender a $500.00 civil penalty to the Department (ARIZ. REV. STAT. § 32-2199.02(A)).

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $500.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)

Analytics Highlights

Topics: Records Request, HOA Violation, Civil Penalty, Filing Fee Reimbursement
Additional Citations:

  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. § 1-243
  • ARIZ. ADMIN. CODE R2-19-107
  • ARIZ. REV. STAT. § 33-1804

Audio Overview

Decision Documents

19F-H1918037-REL-RHG Decision – 737525.pdf

Uploaded 2025-10-08T07:08:32 (176.7 KB)





Briefing Doc – 19F-H1918037-REL-RHG


Briefing Document: Barrs v. Desert Ranch Homeowners Association

Executive Summary

This document synthesizes the findings from two Administrative Law Judge (ALJ) Decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The central issue was whether the Association violated Arizona Revised Statute (A.R.S.) § 33-1805 by failing to adequately fulfill a records request submitted by the Petitioner on November 1, 2018.

The initial hearing on March 21, 2019, resulted in an April 10, 2019, decision in favor of the Association. The ALJ concluded that the Petitioner had failed to properly submit his request to all members of the Association’s Board, and thus the Association’s partial response (a summary table) did not constitute a statutory violation.

Following a successful appeal by the Petitioner, a rehearing was held on August 27, 2019. New evidence demonstrated that the Petitioner had followed prior express instructions from the Association regarding who to contact for records requests. Consequently, the ALJ issued a new decision on September 12, 2019, reversing the original order. The final ruling found the Association in violation of A.R.S. § 33-1805. The Association was ordered to reimburse the Petitioner’s $500 filing fee and was assessed a civil penalty of $500.

Case Overview

Case Numbers

No. 19F-H1918037-REL (Initial Decision)
No. 19F-H1918037-REL-RHG (Rehearing Decision)

Petitioner

Tom Barrs, a property owner and member of the Association.

Respondent

Desert Ranch Homeowners Association, Scottsdale, Arizona.

Central Issue

Whether the Association violated A.R.S. § 33-1805 by failing to fulfill a records request for Environmental Design Committee (EDC) actions, requests, and approvals.

Initial Petition

Filed by Tom Barrs on December 17, 2018.

Initial Hearing

March 21, 2019, before ALJ Jenna Clark.

Rehearing

August 27, 2019, before ALJ Jenna Clark.

Final Outcome

Petition granted in favor of Tom Barrs. The Association was found in violation of state law, ordered to reimburse the filing fee, and fined.

Key Individuals and Entities

Role / Affiliation

Tom Barrs

Petitioner; homeowner in the Desert Ranch subdivision.

Desert Ranch HOA

Respondent; homeowners’ association.

Jenna Clark

Administrative Law Judge, Office of Administrative Hearings.

Brian Schoeffler

Chairman of the Association’s Environmental Design Committee (EDC); appeared on behalf of the Association.

Catherine Overby

President of the Association’s Board of Directors.

Lori Loch-Lee

Vice President of Client Services at Associated Asset Management (AAM), the Association’s accounting/management company.

Jonathan Dessaules, Esq.

Attorney who appeared on behalf of the Petitioner at the rehearing.

The Records Request and Subsequent Dispute

The Initial Request

On November 1, 2018, at 9:40 p.m., Petitioner submitted an electronic records request to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee. The text of the request was as follows:

“Pursuant to ARS 33-1805, I am requesting a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018. Soft copies via return email are preferable; otherwise, please let me know when hard copies are available for pickup.”

The Association’s Response and Petitioner’s Follow-Up

• November 2, 2018: Lori Loch-Lee from AAM notified the Petitioner she would forward his request to all Board members, noting that AAM was only the Association’s accounting firm.

• November 18, 2018: The Petitioner received a summary table listing some EDC actions, not the complete set of communications and documents requested. At this time, he was advised by Brian Schoeffler that he “needed to copy all Board members on records requests.”

• March 6, 2019: The Petitioner sent a follow-up email, accusing the Association of willful failure and clarifying the specific records he sought beyond the summary table, including “copies of the communications (letters, emails, and application forms) relating to Environmental Design Review (EDC) submissions, requests, complaints and approvals (or denials).”

• March 11, 2019: Mr. Schoeffler replied, arguing that the request had been complied with on November 18, 2018, and directed the Petitioner to “submit a new request” for the additional information.

• March 17, 2019: Mr. Schoeffler reiterated that the original request was only sent to two of four Board members and stated that providing additional documents could be “interpreted as an admission of guilt.”

As of the rehearing date (August 27, 2019), the Petitioner had still not received all the documentation requested on November 1, 2018.

Legal Proceedings and Rulings

Initial Hearing and Decision (April 10, 2019)

In the first hearing, the dispute centered on the validity of the request submission and the adequacy of the Association’s response.

Arguments:

• Petitioner (Barrs): Argued the Association acted in bad faith and willfully failed to fulfill the request, noting a similar dispute had been previously adjudicated. He was concerned with the completeness of the response, not its timeliness.

• Respondent (HOA): Argued it had complied with the request by providing a summary table, consistent with its handling of a previous dispute with the Petitioner. Mr. Schoeffler testified that the response was untimely (provided on the 11th business day) but asserted it was otherwise sufficient.

ALJ Conclusion: The Judge ruled in favor of the Association, denying the Petitioner’s petition. The key finding was that the Petitioner had failed to properly submit his request.

“Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation of ARIZ. REV. STAT. § 33-1805 for providing him with a summary table on November 18, 2018.”

The decision also noted that the statute does not legally obligate an HOA to email copies of records.

Rehearing and Final Decision (September 12, 2019)

After the Petitioner’s appeal was granted, a rehearing introduced new evidence that fundamentally changed the outcome.

New Evidence and Concessions:

• July 19, 2017 Instruction: Evidence showed Association President Catherine Overby had previously appointed Brian Schoeffler as the Petitioner’s “primary records request contact.”

• July 18, 2018 Instruction: Evidence showed Ms. Overby had also instructed the Petitioner to direct requests to the management company, AAM.

• Association Concessions: The Respondent conceded that its governing documents do not require all Board members to be copied on records requests and that its own bylaws regarding submission forms are not adhered to or enforced.

ALJ’s Reversed Conclusion: The Judge reversed the prior decision and granted the Petitioner’s petition. The new evidence proved the Petitioner had followed express instructions from the Association.

“Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.”

The Judge concluded that the partial response was a clear violation of the law.

“Petitioner is correct that the Association did not fully comply with his specific request, and has established by a preponderance of the evidence that the summary table provided by the Association was a violation of ARIZ. REV. STAT. § 33-1805.”

Final Order and Penalties

The Administrative Law Judge’s Final Order on September 12, 2019, which is binding on the parties, mandated the following:

1. Petition Granted: The Petitioner’s petition was granted.

2. Filing Fee Reimbursement: The Respondent (Desert Ranch HOA) was ordered to reimburse the Petitioner’s $500.00 filing fee.

3. Civil Penalty: The Respondent was ordered to pay a civil penalty of $500.00 to the Arizona Department of Real Estate.


Victor L Pattarozzi v. Estrella Vista Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919047-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-06-05
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victor L Pattarozzi Counsel —
Respondent Estrella Vista Homeowners Association Counsel Andrew Apodaca, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Architectural Committee meetings of the HOA were not 'regularly scheduled' within the meaning of ARIZ. REV. STAT. § 33-1804, and therefore the HOA was not required to hold them open to association members.

Why this result: The petitioner failed to prove that the committee meetings met the requirement of being 'regularly scheduled' because the committee did not meet at fixed or uniform intervals, but rather considered applications as they were received.

Key Issues & Findings

Whether the Architectural Committee meetings are 'regularly scheduled' and thus required to be open to members.

Petitioner alleged the HOA violated ARS 33-1804 by failing to hold open meetings of its Architectural Committee (ARC). The ALJ found that because the ARC did not meet on a set schedule or at uniform intervals, it did not hold 'regularly scheduled' meetings as required by the statute, and thus was not required to be open.

Orders: Petitioner's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Analytics Highlights

Topics: HOA Open Meetings, Architectural Review Committee, Statutory Interpretation, Regularly Scheduled
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Audio Overview

Decision Documents

19F-H1919047-REL Decision – 713039.pdf

Uploaded 2025-10-09T03:34:08 (89.8 KB)





Briefing Doc – 19F-H1919047-REL


Administrative Law Judge Decision: Pattarozzi vs. Estrella Vista HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919047-REL, concerning a dispute between petitioner Victor L. Pattarozzi and the Estrella Vista Homeowners Association (HOA). The central issue was whether the HOA’s Architectural Review Committee (ARC) meetings were required to be open to all association members under Arizona state law.

The petitioner argued that the HOA violated ARIZ. REV. STAT. § 33-1804 by not holding open meetings for its ARC. The HOA contended that its ARC meetings were not “regularly scheduled” and therefore were exempt from the open meeting requirement for committees under the statute.

The Administrative Law Judge, Thomas Shedden, ruled in favor of the Estrella Vista Homeowners Association, dismissing the petition. The decision hinged on the specific interpretation of the phrase “regularly scheduled committee meetings.” The judge concluded that the ARC, which considers applications on an as-needed basis rather than at fixed, uniform intervals, does not hold “regularly scheduled” meetings. Consequently, its meetings are not required to be open to the general membership of the association.

——————————————————————————–

I. Case Overview

• Case Number: 19F-H1919047-REL

• Parties:

◦ Petitioner: Victor L. Pattarozzi

◦ Respondent: Estrella Vista Homeowners Association

• Presiding Judge: Thomas Shedden, Administrative Law Judge

• Hearing Date: May 16, 2019

• Decision Date: June 5, 2019

• Allegation: The petitioner alleged that the respondent violated ARIZ. REV. STAT. § 33-1804 by failing to hold open meetings for its Architectural Committee, also referred to as the Architectural Review Committee (ARC).

II. Positions of the Parties

A. Petitioner’s Argument (Victor L. Pattarozzi)

Mr. Pattarozzi’s case was predicated on the belief that all ARC meetings should be open to HOA members. His key arguments were:

• Statutory Violation: The HOA’s practice of holding closed ARC meetings constituted a direct violation of the open meeting requirements outlined in ARIZ. REV. STAT. § 33-1804.

• Definition of “Regularly”: To support his interpretation, Mr. Pattarozzi provided dictionary definitions for “regularly” and “regular”:

◦ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals.”

◦ Regular: (1) “constituted, conducted, scheduled, or done in conformity with established or prescribed usages, rules, or discipline”; (2) “recurring, attending, or functioning at fixed, uniform, or normal intervals.”

• Procedural Solution: He suggested that the HOA could comply with the law by scheduling ARC meetings on a weekly basis and simply canceling them if no applications were pending for review.

• Policy of Openness: Mr. Pattarozzi contended that the state’s declared policy in favor of open meetings, as stated in subsection 33-1804(F), should be construed to require ARC meetings to be open to members.

B. Respondent’s Argument (Estrella Vista HOA)

The HOA, represented by Andrew Apodaca, Esq., with testimony from Board President Stuart Glenn, countered that its ARC meetings were not subject to the open meeting law.

• Core Defense: The respondent’s primary position was that ARC meetings are not required to be open to members because they are not “regularly scheduled” as stipulated by the statute.

III. Key Findings of Fact

The Administrative Law Judge established the following facts based on the hearing:

• ARC Composition and Schedule: The ARC consists of five members and does not meet on a set or recurring schedule. It considers applications as they are received.

• Application Volume: As of the May 16, 2019 hearing date, the ARC had received twelve applications in 2019.

• Application Processing:

◦ The HOA’s management company forwards applications to Board President Stuart Glenn.

◦ Mr. Glenn determines how each application is processed.

• “Rubber Stamp” Process: The ARC has a pre-approved “rubber stamp” process for certain requests, specifically for solar panels and repainting using a preapproved color. These requests are approved without further review.

◦ Of the twelve applications received in 2019, eight were approved via this “rubber stamp” process.

• Standard Review Process: For any application not meeting the “rubber stamp” criteria, Mr. Glenn forwards the application to the other four ARC members, who then individually “report back as to their agreement or disagreement with approving the application.”

IV. Legal Analysis and Rationale for Decision

The judge’s decision was based on a detailed interpretation of the relevant statute and legal principles.

A. Statutory Interpretation of ARIZ. REV. STAT. § 33-1804

The judge focused on the precise wording of subsection 33-1804(A): “all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association….”

The judge’s analysis highlighted a critical distinction made by the legislature:

• Board/Association Meetings: The word “all” mandates that every meeting of the full association membership and the board of directors must be open.

• Committee Meetings: The legislature added the qualifier “regularly scheduled,” which explicitly means that not all committee meetings must be open—only those that are regularly scheduled.

B. Defining “Regularly Scheduled”

The judge evaluated the dictionary definitions provided by Mr. Pattarozzi to determine the legislative intent behind the phrase.

• Rejected Definition: The judge dismissed the first definition of “regular” (“done in conformity with the rules”). He reasoned that since all committee meetings are presumed to be conducted according to established rules, applying this definition would make the word “regular” in the statute “redundant or trivial.”

• Accepted Definition: The judge found the second definition of “regular”—”recurring, attending, or functioning at fixed, uniform, or normal intervals”—to be the appropriate interpretation.

• Application to the ARC: Based on this accepted definition, the judge concluded that only committee meetings scheduled on a recurring basis at uniform intervals are required to be open to members. The Estrella Vista HOA’s ARC, which meets on an as-needed basis, does not fit this definition.

C. Analysis of the Policy Statement

The judge also rejected Mr. Pattarozzi’s argument regarding the policy of openness declared in subsection 33-1804(F).

• Statutory Limitation: The judge noted that the policy subsection explicitly references only “meetings of the members’ association or meetings of the board of directors.”

• Omission of Committees: Because the policy statement does not mention committee meetings, the judge concluded that it could not be used to compel the ARC meetings to be open.

V. Final Order and Conclusion

Based on the preceding analysis, the Administrative Law Judge reached a definitive conclusion.

• Conclusion of Law: The judge found that “Respondent’s Architectural Committee does not hold ‘regularly scheduled’ meetings within the meaning of ARIZ. REV. STAT. section 33-1804.”

• Final Ruling: As Mr. Pattarozzi had not proven by a preponderance of the evidence that the HOA violated the statute, his petition was ordered to be dismissed.

• Notice of Rehearing: The decision included a formal notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.


Victor L Pattarozzi v. Estrella Vista Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919047-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-06-05
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Victor L Pattarozzi Counsel —
Respondent Estrella Vista Homeowners Association Counsel Andrew Apodaca, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1804

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Architectural Committee meetings of the HOA were not 'regularly scheduled' within the meaning of ARIZ. REV. STAT. § 33-1804, and therefore the HOA was not required to hold them open to association members.

Why this result: The petitioner failed to prove that the committee meetings met the requirement of being 'regularly scheduled' because the committee did not meet at fixed or uniform intervals, but rather considered applications as they were received.

Key Issues & Findings

Whether the Architectural Committee meetings are 'regularly scheduled' and thus required to be open to members.

Petitioner alleged the HOA violated ARS 33-1804 by failing to hold open meetings of its Architectural Committee (ARC). The ALJ found that because the ARC did not meet on a set schedule or at uniform intervals, it did not hold 'regularly scheduled' meetings as required by the statute, and thus was not required to be open.

Orders: Petitioner's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Analytics Highlights

Topics: HOA Open Meetings, Architectural Review Committee, Statutory Interpretation, Regularly Scheduled
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804
  • ARIZ. REV. STAT. § 33-1805
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • Gutierrez v. Industrial Commission of Arizona
  • State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968)
  • U.S. Parking v. City of Phoenix, 160 Ariz. 210, 772 P.2d 33 (App. 1989)
  • Deer Valley, v. Houser, 214 Ariz. 293, 296, 152 P.3d 490, 493 (2007)

Audio Overview

Decision Documents

19F-H1919047-REL Decision – 713039.pdf

Uploaded 2025-10-08T07:08:58 (89.8 KB)





Briefing Doc – 19F-H1919047-REL


Administrative Law Judge Decision: Pattarozzi vs. Estrella Vista HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge Decision in case number 19F-H1919047-REL, concerning a dispute between petitioner Victor L. Pattarozzi and the Estrella Vista Homeowners Association (HOA). The central issue was whether the HOA’s Architectural Review Committee (ARC) meetings were required to be open to all association members under Arizona state law.

The petitioner argued that the HOA violated ARIZ. REV. STAT. § 33-1804 by not holding open meetings for its ARC. The HOA contended that its ARC meetings were not “regularly scheduled” and therefore were exempt from the open meeting requirement for committees under the statute.

The Administrative Law Judge, Thomas Shedden, ruled in favor of the Estrella Vista Homeowners Association, dismissing the petition. The decision hinged on the specific interpretation of the phrase “regularly scheduled committee meetings.” The judge concluded that the ARC, which considers applications on an as-needed basis rather than at fixed, uniform intervals, does not hold “regularly scheduled” meetings. Consequently, its meetings are not required to be open to the general membership of the association.

——————————————————————————–

I. Case Overview

• Case Number: 19F-H1919047-REL

• Parties:

◦ Petitioner: Victor L. Pattarozzi

◦ Respondent: Estrella Vista Homeowners Association

• Presiding Judge: Thomas Shedden, Administrative Law Judge

• Hearing Date: May 16, 2019

• Decision Date: June 5, 2019

• Allegation: The petitioner alleged that the respondent violated ARIZ. REV. STAT. § 33-1804 by failing to hold open meetings for its Architectural Committee, also referred to as the Architectural Review Committee (ARC).

II. Positions of the Parties

A. Petitioner’s Argument (Victor L. Pattarozzi)

Mr. Pattarozzi’s case was predicated on the belief that all ARC meetings should be open to HOA members. His key arguments were:

• Statutory Violation: The HOA’s practice of holding closed ARC meetings constituted a direct violation of the open meeting requirements outlined in ARIZ. REV. STAT. § 33-1804.

• Definition of “Regularly”: To support his interpretation, Mr. Pattarozzi provided dictionary definitions for “regularly” and “regular”:

◦ Regularly: (1) “in a regular manner”; (2) “on a regular basis: at regular intervals.”

◦ Regular: (1) “constituted, conducted, scheduled, or done in conformity with established or prescribed usages, rules, or discipline”; (2) “recurring, attending, or functioning at fixed, uniform, or normal intervals.”

• Procedural Solution: He suggested that the HOA could comply with the law by scheduling ARC meetings on a weekly basis and simply canceling them if no applications were pending for review.

• Policy of Openness: Mr. Pattarozzi contended that the state’s declared policy in favor of open meetings, as stated in subsection 33-1804(F), should be construed to require ARC meetings to be open to members.

B. Respondent’s Argument (Estrella Vista HOA)

The HOA, represented by Andrew Apodaca, Esq., with testimony from Board President Stuart Glenn, countered that its ARC meetings were not subject to the open meeting law.

• Core Defense: The respondent’s primary position was that ARC meetings are not required to be open to members because they are not “regularly scheduled” as stipulated by the statute.

III. Key Findings of Fact

The Administrative Law Judge established the following facts based on the hearing:

• ARC Composition and Schedule: The ARC consists of five members and does not meet on a set or recurring schedule. It considers applications as they are received.

• Application Volume: As of the May 16, 2019 hearing date, the ARC had received twelve applications in 2019.

• Application Processing:

◦ The HOA’s management company forwards applications to Board President Stuart Glenn.

◦ Mr. Glenn determines how each application is processed.

• “Rubber Stamp” Process: The ARC has a pre-approved “rubber stamp” process for certain requests, specifically for solar panels and repainting using a preapproved color. These requests are approved without further review.

◦ Of the twelve applications received in 2019, eight were approved via this “rubber stamp” process.

• Standard Review Process: For any application not meeting the “rubber stamp” criteria, Mr. Glenn forwards the application to the other four ARC members, who then individually “report back as to their agreement or disagreement with approving the application.”

IV. Legal Analysis and Rationale for Decision

The judge’s decision was based on a detailed interpretation of the relevant statute and legal principles.

A. Statutory Interpretation of ARIZ. REV. STAT. § 33-1804

The judge focused on the precise wording of subsection 33-1804(A): “all meetings of the members’ association and the board of directors, and any regularly scheduled committee meetings, are open to all members of the association….”

The judge’s analysis highlighted a critical distinction made by the legislature:

• Board/Association Meetings: The word “all” mandates that every meeting of the full association membership and the board of directors must be open.

• Committee Meetings: The legislature added the qualifier “regularly scheduled,” which explicitly means that not all committee meetings must be open—only those that are regularly scheduled.

B. Defining “Regularly Scheduled”

The judge evaluated the dictionary definitions provided by Mr. Pattarozzi to determine the legislative intent behind the phrase.

• Rejected Definition: The judge dismissed the first definition of “regular” (“done in conformity with the rules”). He reasoned that since all committee meetings are presumed to be conducted according to established rules, applying this definition would make the word “regular” in the statute “redundant or trivial.”

• Accepted Definition: The judge found the second definition of “regular”—”recurring, attending, or functioning at fixed, uniform, or normal intervals”—to be the appropriate interpretation.

• Application to the ARC: Based on this accepted definition, the judge concluded that only committee meetings scheduled on a recurring basis at uniform intervals are required to be open to members. The Estrella Vista HOA’s ARC, which meets on an as-needed basis, does not fit this definition.

C. Analysis of the Policy Statement

The judge also rejected Mr. Pattarozzi’s argument regarding the policy of openness declared in subsection 33-1804(F).

• Statutory Limitation: The judge noted that the policy subsection explicitly references only “meetings of the members’ association or meetings of the board of directors.”

• Omission of Committees: Because the policy statement does not mention committee meetings, the judge concluded that it could not be used to compel the ARC meetings to be open.

V. Final Order and Conclusion

Based on the preceding analysis, the Administrative Law Judge reached a definitive conclusion.

• Conclusion of Law: The judge found that “Respondent’s Architectural Committee does not hold ‘regularly scheduled’ meetings within the meaning of ARIZ. REV. STAT. section 33-1804.”

• Final Ruling: As Mr. Pattarozzi had not proven by a preponderance of the evidence that the HOA violated the statute, his petition was ordered to be dismissed.

• Notice of Rehearing: The decision included a formal notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order.


David & Brenda Norman v. Rancho Del Lago Community Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

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

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1919051-REL Decision – 710478.pdf

Uploaded 2025-10-08T07:09:03 (150.0 KB)

19F-H1919051-REL Decision – 711115.pdf

Uploaded 2025-10-08T07:09:03 (149.9 KB)





Briefing Doc – 19F-H1919051-REL


Case Briefing: Norman v. Rancho Del Lago Community Association

Executive Summary

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

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

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

Case Overview

Parties and Key Entities

Name/Entity

Description

Petitioners

David and Brenda Norman

Homeowners in the Rancho Del Lago Community.

Respondent

Rancho Del Lago Community Association

The homeowners’ association (HOA) for the community.

Neighbors

The Hendersons

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

Management Co.

Management Solutions

The company managing the Respondent HOA.

Witness (Respondent)

Spencer Brod

Employee of Management Solutions overseeing the Respondent’s affairs.

Administrative Law Judge

Diane Mihalsky

Presiding judge from the Office of Administrative Hearings.

Regulating Body

Arizona Department of Real Estate

State agency authorized to hear certain HOA disputes.

Adjudicating Body

Office of Administrative Hearings

Independent state agency that conducted the evidentiary hearing.

Procedural Details

Detail

Information

Case Number

19F-H1919051-REL

Petition Filed

On or about February 28, 2019

Hearing Date

May 8, 2019

Amended Decision Date

May 28, 2019

Timeline of Key Events

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

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

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

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

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

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

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

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

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

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

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

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

Governing Documents and Key Provisions

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

Document

Provision

Description

Article I § (p)

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

Article II § 2(a)

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

Article XII § 1

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

Common Project Guidelines

Section 3.11(D)(1)

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

Common Project Guidelines

Section 4.21

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

Summary of Testimony and Evidence

Testimony of Brenda Norman (Petitioner)

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

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

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

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

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

Testimony of Spencer Brod (for Respondent)

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

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

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

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

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

Administrative Law Judge’s Conclusions of Law

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

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

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

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

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

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

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

Final Order

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


David & Brenda Norman vs. Rancho Del Lago Community Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

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

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

David & Brenda Norman v. Rancho Del Lago Community Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Analytics Highlights

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

  • A.R.S. § 32-2199.01(A)(1)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09

Audio Overview

Decision Documents

19F-H1919051-REL Decision – 710478.pdf

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

19F-H1919051-REL Decision – 711115.pdf

Uploaded 2025-10-09T03:34:10 (149.9 KB)





Briefing Doc – 19F-H1919051-REL


Case Briefing: Norman v. Rancho Del Lago Community Association

Executive Summary

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

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

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

Case Overview

Parties and Key Entities

Name/Entity

Description

Petitioners

David and Brenda Norman

Homeowners in the Rancho Del Lago Community.

Respondent

Rancho Del Lago Community Association

The homeowners’ association (HOA) for the community.

Neighbors

The Hendersons

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

Management Co.

Management Solutions

The company managing the Respondent HOA.

Witness (Respondent)

Spencer Brod

Employee of Management Solutions overseeing the Respondent’s affairs.

Administrative Law Judge

Diane Mihalsky

Presiding judge from the Office of Administrative Hearings.

Regulating Body

Arizona Department of Real Estate

State agency authorized to hear certain HOA disputes.

Adjudicating Body

Office of Administrative Hearings

Independent state agency that conducted the evidentiary hearing.

Procedural Details

Detail

Information

Case Number

19F-H1919051-REL

Petition Filed

On or about February 28, 2019

Hearing Date

May 8, 2019

Amended Decision Date

May 28, 2019

Timeline of Key Events

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

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

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

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

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

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

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

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

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

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

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

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

Governing Documents and Key Provisions

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

Document

Provision

Description

Article I § (p)

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

Article II § 2(a)

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

Article XII § 1

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

Common Project Guidelines

Section 3.11(D)(1)

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

Common Project Guidelines

Section 4.21

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

Summary of Testimony and Evidence

Testimony of Brenda Norman (Petitioner)

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

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

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

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

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

Testimony of Spencer Brod (for Respondent)

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

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

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

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

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

Administrative Law Judge’s Conclusions of Law

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

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

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

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

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

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

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

Final Order

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


John A Sellers v. Rancho Madera Condominium Association

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Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&Rs § 3.10

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Audio Overview

Decision Documents

19F-H1918010-REL-RHG Decision – 706533.pdf

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

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

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





Briefing Doc – 19F-H1918010-REL-RHG


Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

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

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

Case Chronology and Procedural History

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

Details

Aug 23, 2018

Petition Filed

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

Oct 23, 2018

Hearing Vacated

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

Nov 5 & Dec 12, 2018

Initial Hearing

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

Dec 26, 2018

Initial Decision

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

Feb 1, 2019

Rehearing Requested

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

Feb 22, 2019

Rehearing Granted

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

Apr 15, 2019

Rehearing Held

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

May 7, 2019

Post-Hearing Filing Stricken

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

May 10, 2019

Final Decision on Rehearing

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

Core Dispute Analysis

Petitioner’s Position and Allegations

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

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

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

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

Respondent’s Position and Actions

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

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

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

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

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

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

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

Key CC&R Provisions and Legal Interpretation

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

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

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

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

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

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

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

Judicial Findings and Rulings

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

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

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

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

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

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

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

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

Notable Evidence

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

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