HOA - ALJDEC decisions

25F-H070-REL · Department of Real Estate - H/C · 2025-10-29

Sally Magana

Petitioner,

Wynstone Park Homeowners Association

Respondent.

No. 25F-H070-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 9, 2025

APPEARANCES: Sally Magana (hereinafter “Complainant”) appeared on behalf of herself. Ashley Turner, Esq. appeared on behalf of Wynstone Park Homeowners Association (hereinafter “Respondent”).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Petitioner’s Exhibits 1, 3, 4, 5, and 11. Respondent’s Exhibits A, C, D, E, H, G, I , J, and K.

FINDINGS OF FACT

Background and Procedure

The Arizona Department of Real Estate (hereinafter “the Department”) is

authorized by statute to receive and to decide Petitions for Hearings from members of homeowners’ associations and from homeowners’ associations in Arizona.

Respondent is a homeowners’ association (hereinafter “HOA”) whose

members own homes in Wynstone Park in Mesa, Arizona.

Petitioner owns a home in Wynstone Park at 9926 E. Diamond Avenue

and is a member of Respondent.

On or about July 17, 2025, Petitioner filed a double-issue petition with the

Department alleging that Respondent had (1) violated Title 8, Chapter 6, Article I – 8-6-3(T) of the City of Mesa Code Ordinances by assessing a fine for public nuisances for parking in approve driveway extension; [Respondent] approved the Variance Parking on driveway extension in 1998 and again in 2018.” and (2) violated its Covenants, Conditions, and Restrictions (hereinafter “CC&Rs”) § 7.1 by mis-characterizing maintenance as an unauthorized modification.

Respondent filed a written answer to the petition, denying that it had

violated any CC&Rs or City of Mesa Code Ordinance.

The Department referred the petition to the Office of Administrative

Hearings (hereinafter “OAH”, an independent state agency, for an evidentiary hearing.

On September 4, 2025, the Department issued a Notice of Hearing setting

the above entitled matter for hearing on October 9, 2025 at 9:00 a.m. The Notice of Hearing provided that the issue set for determination was Petitioner’s allegations that Respondent violated, “1. Bylaws Title 8 Chapter 8 Chapter 6 Article, 8-6-3 by “....assessing a fine for public nuisances for parking in approved driveway extension; [Respondent] approved the Variance Parking on driveway extension in 1998 and again in 2018 2. CC&Rs Section 7.1 by mis-characterizing maintenance as unauthorized modification.”

A hearing was held on October 9, 2025.

At hearing, Petitioner testified on her own behalf and presented the

testimony of Adeline Escudero-Mendoza, Jesus Ortiz, and Rita Elizalde. Respondent presented the testimony of Andrew Hancock, the President of Respondent’s Board.

Hearing Evidence

On July 3, 2019, Respondent notified Petitioner by e-mail that it had

granted a variance allowing Petitioner to park anywhere on her driveway extension, as long as she did not cause damage to the neighboring property. The e-mail provided, in relevant part, as follows:

The Board has granted a variance to allow you to park anywhere in your driveway extension. Please note, the driveway extension is permitted so long as no damage is caused to the neighboring property (excessive water run-off causing damage to the neighboring properties yard/landscape or house).

I have note your file, place the variance in your field and closed out the parking violation. So you are aware, no fines were issued for this matter.

Thank you,

[Dawn Feigert]

Community Manager

Trestle Manage Group

On February 26, 2021, Respondent notified Petitioner that she was

parking in violation of her driveway extension approval (past the garage). The February 26, 2021 notice provided, in relevant part, as follows:

During a recent inspection of your community on 02/26/2021 by Dawn Feigert of our management team, it was observed that the condition of certain aspects of your property do not meet the standards set forth in the Wynstone Park Homeowners Association, Inc. CC&Rs and/or Rules and Regulations. Specifically, the following has been found to be out of compliance at your property: Nuisance: Parking on extended driveway beyond approved area; cannot park past the garage per the driveway extension approval

w/stipulations. Per CC&R's Section 8.4: No illegal, noxious or offence activity permitted on any Lot; no act or use may be performed on any Lot that is or may become an annoyance to neighboring properties.

On or about January 27, 2025, Petitioner submitted a Design Review

Application to modify drainage under her driveway paver extension to Respondent’s Architectural Review Committee (hereinafter “ARC”).

On February 11, 2025, Respondent issued a Notice of Architectural

Disapproval that provided, in relevant part, as follows:

Unfortunately, your recent application for architectural change has been disapproved by Wynstone Park Homeowners Association, Inc. Specifically, you do not have approval to proceed with the following request: Other - Termite issues caused and then follow by placing the pavers back.

Please understand that the Wynstone Park Homeowners Association, Inc. is charged with the responsibility of preserving the aesthetic appearance of the community and to ensure that any exterior changes adhere to the standards established in the CC&Rs and/or Architectural Guidelines. Unfortunately, this occasionally means rejecting an architectural request. In this case,

the request was disapproved for the following reason(s):

Per the community design guidelines, pavers should not take over more than 50% of the front yard.

Additionally, the pavers have caused issues as they are regularly parked on near the front door of the neighbor.

To resubmit for approval, please change the plan to have the pavers go past the end of the driveway and add landscaping to meet guidelines or you will need to bring the brick wall/gate up to near the end of the driveway.

On June 2, 2025, Respondent notified Petitioner that she had violated

CC&Rs Section 7.1 by engaging in a modification that was not approved by the ARC. The June 2, 2025 Courtesy Notice provided, in relevant part, as follows:

During a recent inspection of your community on by Lea Austin of our management team, it was observed that the condition of certain aspects of your property does not meet the standards set forth in the Wynstone Park Homeowners Association, Inc. CC&Rs and/or Rules and Regulations. Specifically, the following has been found to be out of compliance at your property: Unapproved Architectural Change: Please submit architectural application for repairs to your front area. Per CCR Section 7.1 Architectural Approval. No exterior alterations or modifications shall be made without prior written approval of the Architectural Review Committee.

On June 11, 2025, Respondent issued a Violation Notice/Monetary

Penalty to Petitioner that notified that Respondent assessed a $25.00 fine because Petitioner violated CC&Rs Section 7.1.

On June 23, 2025, Respondent notified Petitioner that the ARC denied the

Application because pavers may not cover more than 50% of the front yard according to the community guidelines, and because Petitioner regularly parked on the pavers and it was creating issues with Petitioner’s neighbors. The e-mail included a reference to a meeting between Petitioner and the board in March of 2025 wherein Board members notified Petitioner that her driveway did not comply with the City of Mesa Code compliance requirements.

Testimony of Rita Elizalde

Ms. Elizalde owns a construction design company (hereinafter “JLM”)

along with her husband. Petitioner contacted Ms. Elizalde because her driveway extension was pooling water. Petitioner told Ms. Elizalde that Respondent did not allow modifications to the driveway. Ms. Elizalde considered ways to remedy the problem without changing the design of the driveway. Ms. Elizalde examined Petitioner’s property and opined that the pavers were sinking because the previous installer installed a play sand base. Ms. Elizalde did not observe water pooling over into a neighbor’s yard.

JLM altered the slope of the driveway to prevent water from going into the

neighbor’s property. JLM removed the original sand from the bottom layer and installed a new gravel surface, a decomposed granite.

Ms. Magana hired JLM to cure her pooling problem. Ms. Magana stated

that she also wanted to cure a termite problem. Ms. Magana contended that she was maintaining the driveway and the overall design of the driveway was not altered. JLM installed the same pavers that were removed to install a new base.

20. Article VII of the CC&Rs is entitled Architectural Control. The CC&Rs that Petitioner referenced in the petition that she filed with the Department provide in relevant part as follows:

Section 7.1 provides in relevant part as follows:

7.1 Architectural Approval. No Ancillary Unit may be constructed or maintained

on a Lot, and no exterior addition, change, or alteration may be made to any Detached Dwelling Unit or approved Ancillary Unit located on a Lot, until all plans and specifications are submitted to and approved in writing by the Architectural Committee. All plans and specifications submitted to the Architectural Committee must show the nature, type, size, style, color, shape, height, location, materials, floor plan, approximate cost, and other material attributes. All plans and specifications will be reviewed by the Architectural Committee for harmony and compatibility of external design and location in relation to surrounding structures, landscaping, topography, and views from neighboring Lots.

21. Respondent’s Design Guidelines provide, in relevant part as follows:

.................................

Driveway extensions will be reviewed for approval provided the following conditions are met.

.................................

3. The total parking area may not exceed the greater of thirty (30) feet of contiguous frontage or fifty percent (50%) of the lot width (existing plus extension) as measured as its widest point.

.................................

Testimony of Andrew Hancock

22. At hearing, Mr. Hancock explained that the Board received complaints from Petitioner’s neighbor that the sound of her vehicle wakes their child. The Board also received a complaint that when Petitioner’s car is parked on the driveway extension, the neighbor has to go around the car when taking his trash to the burb and must cross over Petitioner’s property.

23. Mr. Hancock also explained that when the water pooled on Petitioner’s driveway extension, it crossed the border onto the neighbor’s yard. Mr. Hancock provided testimony regarding how the driveway extension was modified stating, “the grading has been manipulated in a way to flatten and level what's the base. And then it looks like there's some PVC piping or something that has been added to the grade as well.”

24. Mr. Hancock explained that because the driveway extension covers at least 50% of the yard, the driveway extension does not comply with the City of Mesa ordinances.

25. Mr. Hancock explained at hearing that Section 10.1 governs the Board’s authority to enforce the CC&Rs.

26. Article VII of the CC&Rs is entitled Enforcement. Section 10.1 of the CC&Rs that Mr. Hancock referred to in his testimony at hearing provides, in relevant part, as follows:

10.1 Enforcement. The Association, in the first instance, or any Owner, if the

Association fails to act within a reasonable time, will have the right to enforce by any proceeding at law or in equity all covenants and restrictions now or in the future imposed by the provisions of this Declaration or the other Project Documents. Failure of the Association or any Owner to enforce any covenant and reservation in this Declaration or in the other Project Documents will not be deemed a waiver of the right of the Association or any Owner to enforce the covenant or restriction in the future for the same or similar violation.

CONCLUSIONS OF LAW

A.R.S. § 32-2199(B) permits an owner or a planned community

organization to file a petition with the Department for a hearing concerning violations of planned community documents under the authority Title 33, Chapter 16.

The OAH does not have jurisdiction to determine whether a planned

community organization has violated a City of Mesa Code Ordinance.

Petitioner bears the burden of proof to establish that Respondent violated

on its CC&Rs by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

A preponderance of the evidence is such proof as convinces the trier

of fact that the contention is more probably true than not.” A preponderance of

the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

5. In Arizona, if a restrictive covenant is unambiguous, it is enforced to

give effect to the intent of the parties. “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”

6. Section 7.1 of the CC&Rs regulates homeowners and not

Respondent.

7. Section 7.1 of the CC&Rs requires homeowners to submit an

application to the ARC prior to making changes or alterations to their lot. The preponderance of the evidence shows that Petitioner made changes to the surface under her pavers and to the slope of her driveway extension, without prior approval. Petitioner has not established that Respondent mischaracterized Section 7.1 of the CC&Rs.

8. Section 10.1 of the CC&Rs authorizes Respondent to enforce the

CC&Rs. Petitioner has failed to meet her burden to establish that Respondent violated Respondent’s CC&Rs, governing document, or any statutes that regulate planned communities.

9. Petitioner’s petition should be dismissed.

order

IT IS ORDERED that Petitioners’ petition is dismissed.

NOTICE

Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.

-54864001

001

-137160-45720000Done this day, October 29, 2025.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile October 29, 2025 to:

Susan Nicolson

Commissioner

Arizona Department of Real Estate

Wynstone Park Homeowner Association

CHDB Law

[email redacted]

Sally Magana

sally_7379@live

By: OAH Staff