Tag Archives: 2019

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.”


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

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Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

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

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

Key Issues & Findings

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

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

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

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

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

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

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

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

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

Key Issues & Findings

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

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

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

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

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Audio Overview

Decision Documents

19F-H1919044-REL Decision – 706518.pdf

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

19F-H1919044-REL Decision – 706560.pdf

Uploaded 2025-10-09T03:34:04 (108.8 KB)





Briefing Doc – 19F-H1919044-REL


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

Executive Summary

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

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

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

Case Overview

Case Number

19F-H1919044-REL

Petitioner

Pointe Tapatio Community Association

Respondents

Lanye C. Wilkey and Devin E. Wilkey

Hearing Date

April 26, 2019

Decision Date

May 7, 2019

Presiding Judge

Thomas Shedden, Administrative Law Judge

Location

Office of Administrative Hearings, Phoenix, Arizona

Allegation and Governing Rule

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

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

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

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

Key Findings of Fact

The Business Operation

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

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

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

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

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

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

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

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

The Respondents’ Defense

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

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

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

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

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

The Association’s Rebuttal and Position

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

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

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

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

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

Conclusions of Law and Rationale

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

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

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

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

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

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

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

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

Final Order

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

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

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

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


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

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

CC&R Article 3, section 3.1

Outcome Summary

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

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

Key Issues & Findings

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

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

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

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

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Audio Overview

Decision Documents

19F-H1919044-REL Decision – 706518.pdf

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

19F-H1919044-REL Decision – 706560.pdf

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





Briefing Doc – 19F-H1919044-REL


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

Executive Summary

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

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

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

Case Overview

Case Number

19F-H1919044-REL

Petitioner

Pointe Tapatio Community Association

Respondents

Lanye C. Wilkey and Devin E. Wilkey

Hearing Date

April 26, 2019

Decision Date

May 7, 2019

Presiding Judge

Thomas Shedden, Administrative Law Judge

Location

Office of Administrative Hearings, Phoenix, Arizona

Allegation and Governing Rule

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

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

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

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

Key Findings of Fact

The Business Operation

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

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

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

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

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

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

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

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

The Respondents’ Defense

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

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

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

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

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

The Association’s Rebuttal and Position

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

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

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

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

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

Conclusions of Law and Rationale

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

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

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

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

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

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

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

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

Final Order

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

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

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

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


Patricia Wiercinski v. Long Meadow Ranch East Property Owners

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Audio Overview

Decision Documents

19F-H1918028-REL-RHG Decision – 705044.pdf

Uploaded 2025-10-09T03:33:46 (136.8 KB)





Briefing Doc – 19F-H1918028-REL-RHG


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

Executive Summary

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

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

1. Case Overview

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

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

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

2. The Incident of June 19, 2017

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

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

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

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

3. The Central Evidence: The Email Correspondence

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

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

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

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

4. Legal Proceedings and Evolving Arguments

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

4.1. Initial Hearing (January 10, 2019)

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

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

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

4.2. Rehearing (April 22, 2019)

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

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

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

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

5. Key Findings and Conclusions of the Administrative Law Judge

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

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

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

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

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

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

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

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

Wayne Coates

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

Mike Olson

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

Gregg Arthur

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

Kathy Andrews

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

John Allen

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

Joe Zielinski

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

Diane Mihalsky

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


Patricia Wiercinski v. Long Meadow Ranch East Property Owners

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

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

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

Key Issues & Findings

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

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

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

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

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

Audio Overview

Decision Documents

19F-H1918028-REL-RHG Decision – 705044.pdf

Uploaded 2025-10-08T07:08:04 (136.8 KB)





Briefing Doc – 19F-H1918028-REL-RHG


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

Executive Summary

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

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

1. Case Overview

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

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

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

2. The Incident of June 19, 2017

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

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

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

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

3. The Central Evidence: The Email Correspondence

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

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

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

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

4. Legal Proceedings and Evolving Arguments

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

4.1. Initial Hearing (January 10, 2019)

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

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

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

4.2. Rehearing (April 22, 2019)

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

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

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

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

5. Key Findings and Conclusions of the Administrative Law Judge

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

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

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

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

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

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

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

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

Wayne Coates

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

Mike Olson

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

Gregg Arthur

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

Kathy Andrews

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

John Allen

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

Joe Zielinski

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

Diane Mihalsky

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


Tom J Martin v. SaddleBrooke Home Owners Association #1, Inc.

Posted on by

Case Summary

Case ID 19F-H1918022-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Thomas Shedden
Outcome respondent_win
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom J Martin Counsel —
Respondent SaddleBrooke Home Owners Association #1, Inc. Counsel Carolyn B. Goldschmidt

Alleged Violations

ARIZ. REV. STAT. § 32-2199.01(A); ARIZ. REV. STAT. § 33-1802(2)

Outcome Summary

The case was dismissed because the Office of Administrative Hearings lacked jurisdiction, as the alleged violations (HOA website and policy BC-3) did not pertain to 'community documents' as defined by Arizona statute.

Why this result: Petitioner failed to meet the jurisdictional requirements of ARIZ. REV. STAT. § 32-2199.01(A) by alleging violations of documents (website, policy manual) that are not defined as 'community documents' under ARIZ. REV. STAT. § 33-1802(2).

Key Issues & Findings

Jurisdiction based on alleged violations of non-community documents (HOA website and policy manual)

Petitioner alleged the HOA violated its website and Policy BC-3 by failing to provide pickleball courts as advertised, requesting $463,112.00 in financial support or court construction. The ALJ found that neither the website nor Policy BC-3 are defined as 'community documents' under A.R.S. § 33-1802(2), thus denying jurisdiction under A.R.S. § 32-2199.01(A). The petition was dismissed.

Orders: Petitioner Tom J. Martin’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1802(2)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 1-213
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Walker v. Scottsdale, 163 Ariz. 206, 786 P.2d 1057 (App. 1989)

Analytics Highlights

Topics: jurisdiction, community_documents, dismissal, policy_manual, pickleball, statutory_interpretation
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1802(2)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 1-213
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc.
  • Walker v. Scottsdale

Audio Overview

Decision Documents

19F-H1918022-REL-RHG Decision – 704322.pdf

Uploaded 2025-10-08T07:07:45 (89.7 KB)





Briefing Doc – 19F-H1918022-REL-RHG


Administrative Law Judge Decision: Martin v. SaddleBrooke HOA #1

Executive Summary

The petition filed by Tom J. Martin against the SaddleBrooke Home Owners Association #1, Inc. was dismissed by the Arizona Office of Administrative Hearings. The Administrative Law Judge (ALJ) concluded that the tribunal lacked jurisdiction over the dispute. The core of the decision rests on a strict interpretation of Arizona state law, which limits the hearing office’s authority to violations of formally defined “community documents.”

Mr. Martin’s primary grievance was the HOA’s alleged failure to provide and fund pickleball courts as advertised on its website and outlined in an internal policy document (Policy BC-3). However, the ALJ found that neither an HOA’s website nor its internal policies qualify as “community documents” under the statutory definition, which is restricted to the declaration, bylaws, articles of incorporation, and rules. Mr. Martin’s attempt to equate “policy” with “rule” was deemed unpersuasive because the policy in question had not been formally adopted as a rule by the HOA.

Furthermore, the specific relief requested by Mr. Martin—a demand for $463,112.00, the construction of eight new courts, and mandated maintenance funding—was found to be outside the scope of the ALJ’s statutory authority to grant. The dismissal, issued as a result of a rehearing, is binding on the parties.

Case Background and Procedural History

This briefing document outlines the findings and decision in case number 19F-H1918022-REL-RHG, presided over by Administrative Law Judge Thomas Shedden. The matter involved a dispute between Petitioner Tom J. Martin and Respondent SaddleBrooke Home Owners Association #1, Inc.

September 28, 2018

Mr. Martin filed a single-issue petition with the Arizona Department of Real Estate.

November 30, 2018

The HOA filed a Motion to Dismiss, challenging the Department’s jurisdiction.

December 4, 2018

Mr. Martin filed a Response to the Motion to Dismiss.

December 12, 2018

An Administrative Law Judge Decision was issued, ordering the petition be dismissed.

December 31, 2018

Mr. Martin filed a request for a rehearing.

April 16, 2019

The rehearing was conducted.

May 10, 2019

The final Administrative Law Judge Decision was issued, dismissing the petition.

Petitioner’s Allegations and Requested Relief

Initial Petition Allegations

• The core of Mr. Martin’s petition, filed September 28, 2018, was the allegation that the SaddleBrooke HOA violated its website and its policy manual, specifically Policy Number BC-3.

• The central claim was that “the Association is in violation for not providing pickleball courts as advertised and marketed….”

• While Mr. Martin checked boxes on the petition form indicating violations of the CC&Rs and Bylaws, he did not identify any specific provisions of those documents in his initial filing.

Allegations on Rehearing

In his request for a rehearing, Mr. Martin attempted to amend his claim by alleging specific violations of formal community documents:

• He argued the HOA violated Bylaws article 4, section 6(3) by failing to implement policy BC-3.

• He alleged the HOA violated Articles of Incorporation Article XII by not providing pickleball as promised, which he tied back to the failure to implement policy BC-3.

Requested Relief

Mr. Martin sought significant remedies from the HOA, requesting that it either:

1. Provide financial support of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon; or

2. Provide eight new pickleball courts within a two-mile radius of the community within one year.

Additionally, he demanded that the HOA be held financially responsible for the maintenance of the pickleball courts in an amount equal to what it spent on eight tennis courts.

Respondent’s Jurisdictional Challenge

The SaddleBrooke HOA’s primary defense was a jurisdictional challenge, arguing that the petition fell outside the legal authority of the Office of Administrative Hearings.

• Limited Jurisdiction: The HOA contended that pursuant to ARIZ. REV. STAT. § 32-2199.01, administrative hearings are limited to disputes regarding violations of “planned community documents” or applicable state statutes.

• Definition of “Community Documents”: The HOA cited ARIZ. REV. STAT. § 33-1802(2), which defines “community documents” as “the declaration, bylaws, articles of incorporation, if any, and rules, if any.”

• Exclusion of Policies and Websites: Based on this statutory definition, the HOA argued that its website and Policy BC-3 are not “community documents,” and therefore any alleged violation of them cannot be adjudicated in this forum.

• Authority to Grant Relief: The HOA also argued that the specific financial and construction-related relief Mr. Martin sought was not within the tribunal’s authority to grant.

Administrative Law Judge’s Decision and Legal Rationale

The ALJ ultimately sided with the Respondent HOA and ordered the petition dismissed. The decision was based on a strict application of Arizona statutes governing planned communities and the administrative hearing process.

Conclusions of Law

1. Statutory Limitations: The judge affirmed that hearings under A.R.S. § 32-2199.01(A) are restricted to alleged “violations of … planned community documents or violations of the statutes that regulate … planned communities.”

2. Definition of “Community Documents” is Controlling: The decision hinges on the explicit definition of “community documents” in A.R.S. § 33-1802(2). The judge noted that the tribunal must follow definitions provided by the legislature. The finding states: “This definition does not include a planned community’s statements of policy, statements on its website, or advertising and marketing material.”

3. A “Policy” is Not a “Rule”: Mr. Martin’s argument that a “policy” should be interpreted as a “rule” was found to be “not persuasive.” The judge found that the HOA had not formally adopted Policy BC-3 as a rule under the authority granted in its CC&Rs (section 4.5). Therefore, the policy could not be treated as an enforceable “community document.”

4. Petition’s Failure to Meet Requirements: Because Mr. Martin’s original petition only alleged violations of the website and the policy manual—neither of which are legally defined as community documents—the petition “does not meet the requirements of ARIZ. REV. STAT. section 32-2199.01(A).”

5. Relief Outside of Authority: The ALJ also concluded that the requested relief was “not within the scope of the Administrative Law Judge’s authority” as prescribed by A.R.S. § 32-2199.02. The statute allows an ALJ to order a party to abide by the documents at issue and levy civil penalties, but not to order large monetary payments for construction or specific performance of capital projects.

Final Order

• “IT IS ORDERED that Petitioner Tom J. Martin’s petition is dismissed.”

• The decision, being the result of a rehearing, is binding on the parties.

• Any party wishing to appeal must file for judicial review with the superior court within thirty-five days from the date of service of the order.


Tom J Martin v. SaddleBrooke Home Owners Association #1, Inc.

Posted on by

Case Summary

Case ID 19F-H1918022-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Thomas Shedden
Outcome respondent_win
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Tom J Martin Counsel —
Respondent SaddleBrooke Home Owners Association #1, Inc. Counsel Carolyn B. Goldschmidt

Alleged Violations

ARIZ. REV. STAT. § 32-2199.01(A); ARIZ. REV. STAT. § 33-1802(2)

Outcome Summary

The case was dismissed because the Office of Administrative Hearings lacked jurisdiction, as the alleged violations (HOA website and policy BC-3) did not pertain to 'community documents' as defined by Arizona statute.

Why this result: Petitioner failed to meet the jurisdictional requirements of ARIZ. REV. STAT. § 32-2199.01(A) by alleging violations of documents (website, policy manual) that are not defined as 'community documents' under ARIZ. REV. STAT. § 33-1802(2).

Key Issues & Findings

Jurisdiction based on alleged violations of non-community documents (HOA website and policy manual)

Petitioner alleged the HOA violated its website and Policy BC-3 by failing to provide pickleball courts as advertised, requesting $463,112.00 in financial support or court construction. The ALJ found that neither the website nor Policy BC-3 are defined as 'community documents' under A.R.S. § 33-1802(2), thus denying jurisdiction under A.R.S. § 32-2199.01(A). The petition was dismissed.

Orders: Petitioner Tom J. Martin’s petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1802(2)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 1-213
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • Walker v. Scottsdale, 163 Ariz. 206, 786 P.2d 1057 (App. 1989)

Analytics Highlights

Topics: jurisdiction, community_documents, dismissal, policy_manual, pickleball, statutory_interpretation
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1802(2)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 1-213
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc.
  • Walker v. Scottsdale

Audio Overview

Decision Documents

19F-H1918022-REL-RHG Decision – 704322.pdf

Uploaded 2025-10-09T03:33:41 (89.7 KB)





Briefing Doc – 19F-H1918022-REL-RHG


Administrative Law Judge Decision: Martin v. SaddleBrooke HOA #1

Executive Summary

The petition filed by Tom J. Martin against the SaddleBrooke Home Owners Association #1, Inc. was dismissed by the Arizona Office of Administrative Hearings. The Administrative Law Judge (ALJ) concluded that the tribunal lacked jurisdiction over the dispute. The core of the decision rests on a strict interpretation of Arizona state law, which limits the hearing office’s authority to violations of formally defined “community documents.”

Mr. Martin’s primary grievance was the HOA’s alleged failure to provide and fund pickleball courts as advertised on its website and outlined in an internal policy document (Policy BC-3). However, the ALJ found that neither an HOA’s website nor its internal policies qualify as “community documents” under the statutory definition, which is restricted to the declaration, bylaws, articles of incorporation, and rules. Mr. Martin’s attempt to equate “policy” with “rule” was deemed unpersuasive because the policy in question had not been formally adopted as a rule by the HOA.

Furthermore, the specific relief requested by Mr. Martin—a demand for $463,112.00, the construction of eight new courts, and mandated maintenance funding—was found to be outside the scope of the ALJ’s statutory authority to grant. The dismissal, issued as a result of a rehearing, is binding on the parties.

Case Background and Procedural History

This briefing document outlines the findings and decision in case number 19F-H1918022-REL-RHG, presided over by Administrative Law Judge Thomas Shedden. The matter involved a dispute between Petitioner Tom J. Martin and Respondent SaddleBrooke Home Owners Association #1, Inc.

September 28, 2018

Mr. Martin filed a single-issue petition with the Arizona Department of Real Estate.

November 30, 2018

The HOA filed a Motion to Dismiss, challenging the Department’s jurisdiction.

December 4, 2018

Mr. Martin filed a Response to the Motion to Dismiss.

December 12, 2018

An Administrative Law Judge Decision was issued, ordering the petition be dismissed.

December 31, 2018

Mr. Martin filed a request for a rehearing.

April 16, 2019

The rehearing was conducted.

May 10, 2019

The final Administrative Law Judge Decision was issued, dismissing the petition.

Petitioner’s Allegations and Requested Relief

Initial Petition Allegations

• The core of Mr. Martin’s petition, filed September 28, 2018, was the allegation that the SaddleBrooke HOA violated its website and its policy manual, specifically Policy Number BC-3.

• The central claim was that “the Association is in violation for not providing pickleball courts as advertised and marketed….”

• While Mr. Martin checked boxes on the petition form indicating violations of the CC&Rs and Bylaws, he did not identify any specific provisions of those documents in his initial filing.

Allegations on Rehearing

In his request for a rehearing, Mr. Martin attempted to amend his claim by alleging specific violations of formal community documents:

• He argued the HOA violated Bylaws article 4, section 6(3) by failing to implement policy BC-3.

• He alleged the HOA violated Articles of Incorporation Article XII by not providing pickleball as promised, which he tied back to the failure to implement policy BC-3.

Requested Relief

Mr. Martin sought significant remedies from the HOA, requesting that it either:

1. Provide financial support of $463,112.00 for the expansion of pickleball courts in Bobcat Canyon; or

2. Provide eight new pickleball courts within a two-mile radius of the community within one year.

Additionally, he demanded that the HOA be held financially responsible for the maintenance of the pickleball courts in an amount equal to what it spent on eight tennis courts.

Respondent’s Jurisdictional Challenge

The SaddleBrooke HOA’s primary defense was a jurisdictional challenge, arguing that the petition fell outside the legal authority of the Office of Administrative Hearings.

• Limited Jurisdiction: The HOA contended that pursuant to ARIZ. REV. STAT. § 32-2199.01, administrative hearings are limited to disputes regarding violations of “planned community documents” or applicable state statutes.

• Definition of “Community Documents”: The HOA cited ARIZ. REV. STAT. § 33-1802(2), which defines “community documents” as “the declaration, bylaws, articles of incorporation, if any, and rules, if any.”

• Exclusion of Policies and Websites: Based on this statutory definition, the HOA argued that its website and Policy BC-3 are not “community documents,” and therefore any alleged violation of them cannot be adjudicated in this forum.

• Authority to Grant Relief: The HOA also argued that the specific financial and construction-related relief Mr. Martin sought was not within the tribunal’s authority to grant.

Administrative Law Judge’s Decision and Legal Rationale

The ALJ ultimately sided with the Respondent HOA and ordered the petition dismissed. The decision was based on a strict application of Arizona statutes governing planned communities and the administrative hearing process.

Conclusions of Law

1. Statutory Limitations: The judge affirmed that hearings under A.R.S. § 32-2199.01(A) are restricted to alleged “violations of … planned community documents or violations of the statutes that regulate … planned communities.”

2. Definition of “Community Documents” is Controlling: The decision hinges on the explicit definition of “community documents” in A.R.S. § 33-1802(2). The judge noted that the tribunal must follow definitions provided by the legislature. The finding states: “This definition does not include a planned community’s statements of policy, statements on its website, or advertising and marketing material.”

3. A “Policy” is Not a “Rule”: Mr. Martin’s argument that a “policy” should be interpreted as a “rule” was found to be “not persuasive.” The judge found that the HOA had not formally adopted Policy BC-3 as a rule under the authority granted in its CC&Rs (section 4.5). Therefore, the policy could not be treated as an enforceable “community document.”

4. Petition’s Failure to Meet Requirements: Because Mr. Martin’s original petition only alleged violations of the website and the policy manual—neither of which are legally defined as community documents—the petition “does not meet the requirements of ARIZ. REV. STAT. section 32-2199.01(A).”

5. Relief Outside of Authority: The ALJ also concluded that the requested relief was “not within the scope of the Administrative Law Judge’s authority” as prescribed by A.R.S. § 32-2199.02. The statute allows an ALJ to order a party to abide by the documents at issue and levy civil penalties, but not to order large monetary payments for construction or specific performance of capital projects.

Final Order

• “IT IS ORDERED that Petitioner Tom J. Martin’s petition is dismissed.”

• The decision, being the result of a rehearing, is binding on the parties.

• Any party wishing to appeal must file for judicial review with the superior court within thirty-five days from the date of service of the order.


William P Lee v vs. Greenlaw Townhouses Unit Two

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioners’ petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 33-1809
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

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

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





Briefing Doc – 19F-H1918019-REL-RHG


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

Executive Summary

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

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

Case Overview

Detail

Information

Case Name

William P. Lee v. Greenlaw Townhouses Unit Two

Case Number

19F-H1918019-REL-RHG

Arizona Office of Administrative Hearings

Petitioner

William P. Lee (Homeowner)

Respondent

Greenlaw Townhouses Unit Two (Homeowners Association)

Hearing Date

April 1, 2019 (Rehearing)

Decision Date

April 22, 2019

Final Order

Petitioner’s petition is denied.

Presiding ALJ

Velva Moses-Thompson

Petitioner’s Core Allegations and Arguments

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

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

◦ Designated fire lanes (Amendment #1).

◦ Periods of snow removal (Amendment #2).

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

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

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

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

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

Respondent’s Defense

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

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

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

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

Analysis of Key Governing Documents

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

Document

Key Provision / Content

Relevance to Case

CC&R Amendments 1, 2, & 3

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

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

Bylaws, Article V, Section 1

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

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

Rules and Regulations (July 2018), Section 8

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

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

Administrative Law Judge’s Findings and Conclusions

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

Burden of Proof

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

Key Conclusions of Law

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

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

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

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

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

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

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

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

Final Order and Implications

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

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

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


William P Lee v vs. Greenlaw Townhouses Unit Two

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

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

Outcome Summary

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

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

Key Issues & Findings

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

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

Orders: Petitioners’ petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

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

Analytics Highlights

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

  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.R.S. § 33-1809
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Powell v. Washburn, 211 Ariz. 553, 556 ¶ 9, 125 P.3d 373, 376 (2006)
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993)

Audio Overview

Decision Documents

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

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





Briefing Doc – 19F-H1918019-REL-RHG


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

Executive Summary

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

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

Case Overview

Detail

Information

Case Name

William P. Lee v. Greenlaw Townhouses Unit Two

Case Number

19F-H1918019-REL-RHG

Arizona Office of Administrative Hearings

Petitioner

William P. Lee (Homeowner)

Respondent

Greenlaw Townhouses Unit Two (Homeowners Association)

Hearing Date

April 1, 2019 (Rehearing)

Decision Date

April 22, 2019

Final Order

Petitioner’s petition is denied.

Presiding ALJ

Velva Moses-Thompson

Petitioner’s Core Allegations and Arguments

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

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

◦ Designated fire lanes (Amendment #1).

◦ Periods of snow removal (Amendment #2).

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

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

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

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

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

Respondent’s Defense

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

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

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

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

Analysis of Key Governing Documents

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

Document

Key Provision / Content

Relevance to Case

CC&R Amendments 1, 2, & 3

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

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

Bylaws, Article V, Section 1

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

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

Rules and Regulations (July 2018), Section 8

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

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

Administrative Law Judge’s Findings and Conclusions

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

Burden of Proof

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

Key Conclusions of Law

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

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

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

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

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

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

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

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

Final Order and Implications

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

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

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