The petition was granted, finding that the HOA violated its own CC&Rs regarding enforcement procedures, particularly by failing to follow Section 18 requirements and by attempting to collect inappropriate legal fees under Section 1.1. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee.
Why this result: The HOA failed to follow the mandatory enforcement procedure requirements set forth in CC&Rs Section 18 (written notice, 30 days to appear before the Board) and inappropriately applied CC&Rs Section 1.1 to pursue attorney fees against the owner rather than a lessee, rendering its subsequent enforcement actions unreasonable.
Key Issues & Findings
HOA enforcement action regarding CC&R violations and associated legal fees
Petitioner challenged the HOA's enforcement actions and resulting demands for legal fees related to short-term and partial-property rentals. The ALJ found the HOA proceeded inappropriately, did not follow the enforcement requirements set forth in CC&Rs Section 18, and improperly utilized Section 1.1 for actions against the owner, thus establishing a violation by the HOA.
Orders: HOA must reimburse Petitioner the $500.00 filing fee. Asserted legal fees sought by the HOA were determined not to be assignable to the Petitioner.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1806.01
CC&Rs Section 1.1
CC&Rs Section 18
Analytics Highlights
Topics: HOA Enforcement, Short-Term Rentals, CC&R Violation, Legal Fees, Due Process
Briefing Document: Stienstra v. Cedar Ridge Homeowners Association
Executive Summary
This document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between homeowner Steven D. Stienstra (Petitioner) and the Cedar Ridge Homeowners Association (HOA/Respondent). The core conflict centered on the HOA’s enforcement actions and subsequent demand for attorney’s fees related to alleged violations of Covenants, Conditions, and Restrictions (CC&Rs) prohibiting short-term rentals.
The ALJ ultimately ruled in favor of the Petitioner in both the initial hearing and a subsequent rehearing. The decisions established that the HOA violated its own CC&Rs by employing an incorrect and unreasonable enforcement procedure. Specifically, the HOA misapplied Section 1.1 of the CC&Rs, which governs an owner’s failure to take action against a non-compliant tenant, instead of following the prescribed due process for owner violations outlined in Section 18. Consequently, the ALJ concluded that the attorney’s fees demanded by the HOA were not assignable to the Petitioner. The final order required the HOA to reimburse the Petitioner’s $500 filing fee, affirming that the HOA’s actions, including a series of escalating cease and desist letters, were procedurally flawed and unreasonable given the circumstances.
Case Overview and Core Dispute
The case, No. 19F-H1918033-REL, involved a petition filed by Steven D. Stienstra in November 2018 with the Arizona Department of Real Estate. Mr. Stienstra alleged that the Cedar Ridge Homeowners Association, a voluntary board in Sedona, Arizona, violated A.R.S. § 33-1806.01 and Sections 1.1 and 18 of its own CC&Rs.
The dispute originated from short-term rental activity at Mr. Stienstra’s property, which he purchased in August 2017. While the Petitioner admitted to the initial violations, he contended that he ceased the activity immediately after a phone call from the HOA President in April 2018. Despite his assurances, the HOA, acting on legal advice, pursued enforcement through a series of cease and desist letters, culminating in a demand for $2,600 in attorney’s fees.
The central issue before the Office of Administrative Hearings was whether the HOA’s enforcement process was proper under its governing documents and, consequently, whether Mr. Stienstra was liable for the legal fees incurred by the HOA.
Chronology of the Dispute
Details
Aug 2017
Property Purchase
Steven D. Stienstra purchases the residence. He acknowledges the CC&R restrictions on short-term rentals.
Jan-Apr 2018
Rental Activity
Stienstra’s son uses VRBO to manage stays for friends and family, which expands to produce some revenue from rentals of less than 30 days.
Apr 3, 2018
Motor Home Incident
HOA Secretary Vic Burolla calls Stienstra about a motor home parked in the driveway, a separate CC&R violation.
April 2018
Ferguson’s Phone Call
HOA President Bill Ferguson calls Stienstra about the short-term rentals. Recollections vary, but Stienstra claims he agreed to cease the activity. Ferguson’s impression was that Stienstra was not going to stop.
Apr 26, 2018
HOA Retains Counsel
The first noted contact between the HOA and its law firm occurs after the phone call with Stienstra.
May 11, 2018
First Cease & Desist Letter
The HOA’s attorney sends a letter demanding Stienstra cease all rentals of less than 30 days and rentals of less than the entire property within ten days, threatening a lawsuit under Section 1.1 of the CC&Rs.
June 1, 2018
Second Cease & Desist Letter
The HOA rejects Stienstra’s explanation of compliance. The letter demands payment of $1,500.00 by July 2, 2018, described as a “flat amount to resolve the matter.”
June 17, 2018
Third Cease & Desist Letter
Citing a new Facebook Marketplace post by Stienstra’s son (offering to lease bedrooms separately), the HOA sends another letter. The demand for attorney’s fees increases to $2,600.00.
Sep 4, 2018
Informal Meeting
At Stienstra’s request, three HOA board members meet with him in an unofficial capacity to discuss the dispute. The meeting transcript reflects a tense relationship.
Nov 2018
Petition Filed
Stienstra files his petition with the Arizona Department of Real Estate.
Oct 7, 2019
Initial Hearing
The Office of Administrative Hearings conducts a hearing on the matter.
Nov 15, 2019
Initial Decision
ALJ Kay Abramsohn issues a decision finding the HOA violated its CC&Rs and grants Stienstra’s petition.
Dec 19, 2019
Rehearing Request
The HOA requests a rehearing, arguing the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion.”
Mar 12, 2020
Rehearing
A rehearing is conducted where the HOA introduces new arguments, including that its board acted in good faith on legal advice.
Apr 1, 2020
Rehearing Decision
The ALJ issues a final decision affirming the original order, finding Stienstra to be the prevailing party and ordering the HOA to reimburse his $500 filing fee.
Analysis of Arguments and Evidence
Petitioner’s Position (Steven D. Stienstra)
• Compliance: Stienstra argued that he and his son ceased all short-term rental activity immediately following the April 2018 phone call from HOA President Bill Ferguson.
• Improper Procedure: The core of his argument was that the HOA failed to follow the enforcement procedures mandated by Section 18 of the CC&Rs. This section requires the Board to provide written notice of a breach, a 30-day period for the owner to appear before the Board, and a reasonable time (up to 60 days) to remedy the breach before levying fines.
• Misapplication of CC&Rs: Stienstra contended the HOA incorrectly proceeded under Section 1.1, which he argued applies to an owner’s failure to take legal action against a non-compliant tenant, not direct violations by the owner themselves.
• Unjustified Fees: Because the HOA did not provide due process and followed an improper enforcement path, Stienstra argued he should be released from any liability for the attorney’s fees the HOA incurred.
Respondent’s Position (Cedar Ridge HOA)
• Reasonable Belief of Violation: The HOA argued it had reason to believe violations were ongoing. It cited the continued presence of a VRBO listing (which Stienstra’s son claimed was inactive for booking) and observations of “multiple cars parked there daily” as evidence.
• Reliance on Legal Counsel: The HOA maintained that its actions were reasonable because it sought and followed the advice of its attorney. At the rehearing, it cited A.R.S. § 10-3830, arguing it discharged its duties in good faith.
• Discretion in Enforcement: The Board believed it had the discretion to enforce the CC&Rs under either Section 1.1 or Section 18. Board Secretary Vic Burolla testified at the rehearing that Section 1.1 was chosen because it “seemed more expeditious, to be able to collect” legal fees.
• “Unclean Hands” Doctrine: At the rehearing, the HOA argued for the first time that because Stienstra had admittedly violated the CC&Rs initially, he had “unclean hands” and was not entitled to seek relief regarding the HOA’s subsequent actions.
Key Evidence Presented
• CC&Rs: The text of Section 1.1 (“Leasing”) and Section 18 (“Enforcement of Covenants”) were central to the case.
• Cease & Desist Letters: The series of three letters from the HOA’s attorney documented the escalating demands and the HOA’s legal strategy.
• Testimony of Board Members: Testimony from Bill Ferguson and Vic Burolla provided insight into the Board’s decision-making process, including their impression of the April 2018 phone call and their justification for hiring an attorney. Vic Burolla provided conflicting testimony, stating in the initial hearing he was “not aware of any specific instructions in the CC&Rs” for notifications, but stating in the rehearing that the Board had discussed the benefits of proceeding under either Section 1.1 or Section 18.
• VRBO and Facebook Listings: Printouts of the online rental listings were used as evidence by the HOA to demonstrate ongoing or attempted violations.
• Meeting Transcript: A transcript of the informal September 4, 2018 meeting revealed the “tense relationship” and communication breakdown between the parties. When asked who was in the house if not tenants, Stienstra replied, “It’s not anybody’s business who’s in our house, really.”
Administrative Law Judge’s Findings and Rulings
The ALJ’s conclusions were consistent across both the initial decision and the rehearing decision, ultimately finding that the Petitioner had proven his case by a preponderance of the evidence.
Interpretation of Governing CC&Rs
• Section 1.1 vs. Section 18: The ALJ decisively concluded that the two sections govern different circumstances.
◦ Section 1.1 applies when an occupant or lessee violates the CC&Rs. It requires the owner to take legal action against that occupant within 10 days of a written demand from the Board. If the owner fails, the Board may act “on behalf of such owner against owner’s occupant.” The ALJ found these were “not the circumstances in this case.”
◦ Section 1.8 is the proper procedure for violations committed directly by the owner. It provides a clear due process framework: written notice, an opportunity to be heard by the Board, and a period to cure the breach.
• Conclusion: The ALJ ruled that the “appropriate action that was required to be taken by Respondent was set forth in Section 18 of the CC&Rs.” By using Section 1.1, the HOA committed a procedural violation.
Assessment of HOA Enforcement Actions
• Verbal Warning: The ALJ characterized the April 2018 phone call from Mr. Ferguson as “appropriate in the nature of education” but clarified it “is not an ‘enforcement’ action under the CC&Rs.”
• Unreasonable Continuation: The Judge found the HOA’s continued actions after the May 11 letter to be unreasonable. The decision notes that the HOA’s characterization of Stienstra “intentionally” continuing to violate the CC&Rs “simply demonstrates that the Board members did not and were not going to believe Petitioner or his son no matter what information they provided.”
• Distrust: The decision highlights the Board’s fundamental distrust, quoting Mr. Burolla’s testimony that even if the HOA had called to clarify the situation, “there’s no reason to suspect we would have been told the truth.”
Ruling on Attorney’s Fees
• Not Assignable to Petitioner: Because the HOA violated its own CC&Rs by following an improper enforcement procedure, the ALJ ruled that the “asserted legal fees are not assigned to Petitioner.”
• Improper Demand: The ALJ specifically analyzed the demand in the June 1, 2018 letter for “$1,500.00… authorized by the Board as a flat amount to resolve the matter.” The ruling states this amount “could only be looked at as either a settlement offer or as some sort of fine, which is not authorized under Section 1.1 but only under Section 18.” It was not a legitimate accounting of actual fees incurred as permitted by the CC&Rs.
• No Expenses Incurred Under Section 1.1: The Judge found that since Stienstra took action to stop the leasing, no legal action by the HOA “on behalf of the owner against the occupant” was required. Therefore, no expenses were actually incurred pursuant to the parameters of Section 1.1.
Final Decisions and Order
• Initial Decision (Nov 15, 2019): The petition was granted, and the HOA was ordered to reimburse Mr. Stienstra the $500.00 filing fee.
• Rehearing Decision (Apr 1, 2020): The ALJ affirmed the original order. The HOA’s new arguments regarding “good faith” and “unclean hands” did not alter the core finding of procedural failure. The final order declared the Petitioner the prevailing party and re-stated the requirement for the HOA to reimburse the filing fee.
Study Guide – 19F-H1918033-REL-RHG
Study Guide: Stienstra v. Cedar Ridge Homeowners Association
This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.
1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?
2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?
3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.
4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?
5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?
6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?
7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?
8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?
9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?
10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?
——————————————————————————–
Quiz Answer Key
1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.
2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”
3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.
4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.
5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.
6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.
7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.
8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.
9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.
10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.
1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?
2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.
3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?
4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.
5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.
——————————————————————————–
Glossary
Definition
A.R.S. § 33-1806.01
An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.
Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.
Cease & Desist Letter
A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.
Declaration
The legal document that creates a homeowners association and its CC&Rs.
Forcible Entry and Detainer
A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.
A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.
Occupant
As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.
Petitioner
The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.
Preponderance of the Evidence
The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.
Respondent
The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.
Special Assessment
A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.
Unclean Hands
A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.
An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.
Blog Post – 19F-H1918033-REL-RHG
Study Guide: Stienstra v. Cedar Ridge Homeowners Association
This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.
1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?
2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?
3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.
4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?
5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?
6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?
7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?
8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?
9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?
10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?
——————————————————————————–
Quiz Answer Key
1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.
2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”
3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.
4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.
5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.
6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.
7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.
8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.
9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.
10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.
1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?
2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.
3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?
4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.
5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.
——————————————————————————–
Glossary
Definition
A.R.S. § 33-1806.01
An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.
Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.
Cease & Desist Letter
A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.
Declaration
The legal document that creates a homeowners association and its CC&Rs.
Forcible Entry and Detainer
A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.
A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.
Occupant
As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.
Petitioner
The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.
Preponderance of the Evidence
The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.
Respondent
The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.
Special Assessment
A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.
Unclean Hands
A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.
An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.
Case Participants
Petitioner Side
Steven D. Stienstra(petitioner) Appeared on his own behalf,.
Petitioner's son(witness) Related to Petitioner Managed rental property listings (referred to as 'Son'),,; testified at hearing,.
Keith D. Collett(HOA attorney) Jones, Skelton & Hochuli, PLC. Represented Cedar Ridge Homeowners Association/HOA,,.
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C. Represented Cedar Ridge Homeowners Association/HOA,.
Vic Burolla(board member) Cedar Ridge Homeowners Association HOA Board Secretary,,; witness at initial hearing,,; no longer Secretary by time of hearing,.
Bill Ferguson(board member) Cedar Ridge Homeowners Association HOA Board President,; no longer President by time of hearing,; witness at initial hearing.
Tucker(board member) Cedar Ridge Homeowners Association HOA Board Vice-president,; participated in September 4, 2018 meeting,.
Griffin(board member) Cedar Ridge Homeowners Association HOA Board Treasurer,; participated in September 4, 2018 meeting,.
Dick Ellis(board member) Cedar Ridge Homeowners Association May have attended portion of September 4, 2018 meeting,.
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge,,.
Judy Lowe(commissioner) Arizona Department of Real Estate Commissioner,,.
The Petitioner was the prevailing party. The ALJ affirmed that the HOA violated its CC&Rs regarding enforcement procedures, particularly by failing to adhere to Section 18 requirements and incorrectly applying Section 1.1 against the owner, rendering the legal fee demands improper. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,.
Why this result: The HOA failed to follow the explicit due process requirements (written notice and 30 days to appear) mandated by CC&Rs Section 18 for enforcement against the owner, and incorrectly relied on Section 1.1 to justify its demand for unauthorized flat fees,,,,.
Key Issues & Findings
HOA enforcement action regarding CC&R violations and asserted legal fees
Petitioner challenged the HOA's enforcement actions regarding short-term rentals and leasing less than the entire lot. The ALJ found the HOA proceeded inappropriately under Section 1.1 (intended for action against occupants on the owner's behalf) and failed to follow the mandatory enforcement requirements of Section 18, thus violating its own CC&Rs. Consequently, the asserted legal fees were not assigned to Petitioner,,,.
Orders: The Petition was granted. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,. The asserted legal fees of $1,500 and $2,600 sought by the HOA were determined not to be assignable to the Petitioner,.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1806.01
CC&Rs Section 1.1
CC&Rs Section 18
Analytics Highlights
Topics: HOA Enforcement, CC&R Violation, Legal Fees, Due Process, Rental Restriction
Briefing Document: Stienstra v. Cedar Ridge Homeowners Association
Executive Summary
This document synthesizes two Administrative Law Judge (ALJ) decisions concerning a dispute between homeowner Steven D. Stienstra (Petitioner) and the Cedar Ridge Homeowners Association (HOA/Respondent). The core conflict centered on the HOA’s enforcement actions and subsequent demand for attorney’s fees related to alleged violations of Covenants, Conditions, and Restrictions (CC&Rs) prohibiting short-term rentals.
The ALJ ultimately ruled in favor of the Petitioner in both the initial hearing and a subsequent rehearing. The decisions established that the HOA violated its own CC&Rs by employing an incorrect and unreasonable enforcement procedure. Specifically, the HOA misapplied Section 1.1 of the CC&Rs, which governs an owner’s failure to take action against a non-compliant tenant, instead of following the prescribed due process for owner violations outlined in Section 18. Consequently, the ALJ concluded that the attorney’s fees demanded by the HOA were not assignable to the Petitioner. The final order required the HOA to reimburse the Petitioner’s $500 filing fee, affirming that the HOA’s actions, including a series of escalating cease and desist letters, were procedurally flawed and unreasonable given the circumstances.
Case Overview and Core Dispute
The case, No. 19F-H1918033-REL, involved a petition filed by Steven D. Stienstra in November 2018 with the Arizona Department of Real Estate. Mr. Stienstra alleged that the Cedar Ridge Homeowners Association, a voluntary board in Sedona, Arizona, violated A.R.S. § 33-1806.01 and Sections 1.1 and 18 of its own CC&Rs.
The dispute originated from short-term rental activity at Mr. Stienstra’s property, which he purchased in August 2017. While the Petitioner admitted to the initial violations, he contended that he ceased the activity immediately after a phone call from the HOA President in April 2018. Despite his assurances, the HOA, acting on legal advice, pursued enforcement through a series of cease and desist letters, culminating in a demand for $2,600 in attorney’s fees.
The central issue before the Office of Administrative Hearings was whether the HOA’s enforcement process was proper under its governing documents and, consequently, whether Mr. Stienstra was liable for the legal fees incurred by the HOA.
Chronology of the Dispute
Details
Aug 2017
Property Purchase
Steven D. Stienstra purchases the residence. He acknowledges the CC&R restrictions on short-term rentals.
Jan-Apr 2018
Rental Activity
Stienstra’s son uses VRBO to manage stays for friends and family, which expands to produce some revenue from rentals of less than 30 days.
Apr 3, 2018
Motor Home Incident
HOA Secretary Vic Burolla calls Stienstra about a motor home parked in the driveway, a separate CC&R violation.
April 2018
Ferguson’s Phone Call
HOA President Bill Ferguson calls Stienstra about the short-term rentals. Recollections vary, but Stienstra claims he agreed to cease the activity. Ferguson’s impression was that Stienstra was not going to stop.
Apr 26, 2018
HOA Retains Counsel
The first noted contact between the HOA and its law firm occurs after the phone call with Stienstra.
May 11, 2018
First Cease & Desist Letter
The HOA’s attorney sends a letter demanding Stienstra cease all rentals of less than 30 days and rentals of less than the entire property within ten days, threatening a lawsuit under Section 1.1 of the CC&Rs.
June 1, 2018
Second Cease & Desist Letter
The HOA rejects Stienstra’s explanation of compliance. The letter demands payment of $1,500.00 by July 2, 2018, described as a “flat amount to resolve the matter.”
June 17, 2018
Third Cease & Desist Letter
Citing a new Facebook Marketplace post by Stienstra’s son (offering to lease bedrooms separately), the HOA sends another letter. The demand for attorney’s fees increases to $2,600.00.
Sep 4, 2018
Informal Meeting
At Stienstra’s request, three HOA board members meet with him in an unofficial capacity to discuss the dispute. The meeting transcript reflects a tense relationship.
Nov 2018
Petition Filed
Stienstra files his petition with the Arizona Department of Real Estate.
Oct 7, 2019
Initial Hearing
The Office of Administrative Hearings conducts a hearing on the matter.
Nov 15, 2019
Initial Decision
ALJ Kay Abramsohn issues a decision finding the HOA violated its CC&Rs and grants Stienstra’s petition.
Dec 19, 2019
Rehearing Request
The HOA requests a rehearing, arguing the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion.”
Mar 12, 2020
Rehearing
A rehearing is conducted where the HOA introduces new arguments, including that its board acted in good faith on legal advice.
Apr 1, 2020
Rehearing Decision
The ALJ issues a final decision affirming the original order, finding Stienstra to be the prevailing party and ordering the HOA to reimburse his $500 filing fee.
Analysis of Arguments and Evidence
Petitioner’s Position (Steven D. Stienstra)
• Compliance: Stienstra argued that he and his son ceased all short-term rental activity immediately following the April 2018 phone call from HOA President Bill Ferguson.
• Improper Procedure: The core of his argument was that the HOA failed to follow the enforcement procedures mandated by Section 18 of the CC&Rs. This section requires the Board to provide written notice of a breach, a 30-day period for the owner to appear before the Board, and a reasonable time (up to 60 days) to remedy the breach before levying fines.
• Misapplication of CC&Rs: Stienstra contended the HOA incorrectly proceeded under Section 1.1, which he argued applies to an owner’s failure to take legal action against a non-compliant tenant, not direct violations by the owner themselves.
• Unjustified Fees: Because the HOA did not provide due process and followed an improper enforcement path, Stienstra argued he should be released from any liability for the attorney’s fees the HOA incurred.
Respondent’s Position (Cedar Ridge HOA)
• Reasonable Belief of Violation: The HOA argued it had reason to believe violations were ongoing. It cited the continued presence of a VRBO listing (which Stienstra’s son claimed was inactive for booking) and observations of “multiple cars parked there daily” as evidence.
• Reliance on Legal Counsel: The HOA maintained that its actions were reasonable because it sought and followed the advice of its attorney. At the rehearing, it cited A.R.S. § 10-3830, arguing it discharged its duties in good faith.
• Discretion in Enforcement: The Board believed it had the discretion to enforce the CC&Rs under either Section 1.1 or Section 18. Board Secretary Vic Burolla testified at the rehearing that Section 1.1 was chosen because it “seemed more expeditious, to be able to collect” legal fees.
• “Unclean Hands” Doctrine: At the rehearing, the HOA argued for the first time that because Stienstra had admittedly violated the CC&Rs initially, he had “unclean hands” and was not entitled to seek relief regarding the HOA’s subsequent actions.
Key Evidence Presented
• CC&Rs: The text of Section 1.1 (“Leasing”) and Section 18 (“Enforcement of Covenants”) were central to the case.
• Cease & Desist Letters: The series of three letters from the HOA’s attorney documented the escalating demands and the HOA’s legal strategy.
• Testimony of Board Members: Testimony from Bill Ferguson and Vic Burolla provided insight into the Board’s decision-making process, including their impression of the April 2018 phone call and their justification for hiring an attorney. Vic Burolla provided conflicting testimony, stating in the initial hearing he was “not aware of any specific instructions in the CC&Rs” for notifications, but stating in the rehearing that the Board had discussed the benefits of proceeding under either Section 1.1 or Section 18.
• VRBO and Facebook Listings: Printouts of the online rental listings were used as evidence by the HOA to demonstrate ongoing or attempted violations.
• Meeting Transcript: A transcript of the informal September 4, 2018 meeting revealed the “tense relationship” and communication breakdown between the parties. When asked who was in the house if not tenants, Stienstra replied, “It’s not anybody’s business who’s in our house, really.”
Administrative Law Judge’s Findings and Rulings
The ALJ’s conclusions were consistent across both the initial decision and the rehearing decision, ultimately finding that the Petitioner had proven his case by a preponderance of the evidence.
Interpretation of Governing CC&Rs
• Section 1.1 vs. Section 18: The ALJ decisively concluded that the two sections govern different circumstances.
◦ Section 1.1 applies when an occupant or lessee violates the CC&Rs. It requires the owner to take legal action against that occupant within 10 days of a written demand from the Board. If the owner fails, the Board may act “on behalf of such owner against owner’s occupant.” The ALJ found these were “not the circumstances in this case.”
◦ Section 1.8 is the proper procedure for violations committed directly by the owner. It provides a clear due process framework: written notice, an opportunity to be heard by the Board, and a period to cure the breach.
• Conclusion: The ALJ ruled that the “appropriate action that was required to be taken by Respondent was set forth in Section 18 of the CC&Rs.” By using Section 1.1, the HOA committed a procedural violation.
Assessment of HOA Enforcement Actions
• Verbal Warning: The ALJ characterized the April 2018 phone call from Mr. Ferguson as “appropriate in the nature of education” but clarified it “is not an ‘enforcement’ action under the CC&Rs.”
• Unreasonable Continuation: The Judge found the HOA’s continued actions after the May 11 letter to be unreasonable. The decision notes that the HOA’s characterization of Stienstra “intentionally” continuing to violate the CC&Rs “simply demonstrates that the Board members did not and were not going to believe Petitioner or his son no matter what information they provided.”
• Distrust: The decision highlights the Board’s fundamental distrust, quoting Mr. Burolla’s testimony that even if the HOA had called to clarify the situation, “there’s no reason to suspect we would have been told the truth.”
Ruling on Attorney’s Fees
• Not Assignable to Petitioner: Because the HOA violated its own CC&Rs by following an improper enforcement procedure, the ALJ ruled that the “asserted legal fees are not assigned to Petitioner.”
• Improper Demand: The ALJ specifically analyzed the demand in the June 1, 2018 letter for “$1,500.00… authorized by the Board as a flat amount to resolve the matter.” The ruling states this amount “could only be looked at as either a settlement offer or as some sort of fine, which is not authorized under Section 1.1 but only under Section 18.” It was not a legitimate accounting of actual fees incurred as permitted by the CC&Rs.
• No Expenses Incurred Under Section 1.1: The Judge found that since Stienstra took action to stop the leasing, no legal action by the HOA “on behalf of the owner against the occupant” was required. Therefore, no expenses were actually incurred pursuant to the parameters of Section 1.1.
Final Decisions and Order
• Initial Decision (Nov 15, 2019): The petition was granted, and the HOA was ordered to reimburse Mr. Stienstra the $500.00 filing fee.
• Rehearing Decision (Apr 1, 2020): The ALJ affirmed the original order. The HOA’s new arguments regarding “good faith” and “unclean hands” did not alter the core finding of procedural failure. The final order declared the Petitioner the prevailing party and re-stated the requirement for the HOA to reimburse the filing fee.
Study Guide – 19F-H1918033-REL-RHG
Study Guide: Stienstra v. Cedar Ridge Homeowners Association
This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.
1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?
2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?
3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.
4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?
5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?
6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?
7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?
8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?
9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?
10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?
——————————————————————————–
Quiz Answer Key
1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.
2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”
3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.
4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.
5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.
6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.
7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.
8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.
9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.
10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.
1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?
2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.
3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?
4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.
5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.
——————————————————————————–
Glossary
Definition
A.R.S. § 33-1806.01
An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.
Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.
Cease & Desist Letter
A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.
Declaration
The legal document that creates a homeowners association and its CC&Rs.
Forcible Entry and Detainer
A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.
A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.
Occupant
As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.
Petitioner
The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.
Preponderance of the Evidence
The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.
Respondent
The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.
Special Assessment
A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.
Unclean Hands
A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.
An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.
Blog Post – 19F-H1918033-REL-RHG
Study Guide: Stienstra v. Cedar Ridge Homeowners Association
This study guide provides a comprehensive review of the administrative hearing and rehearing decisions in the case between petitioner Steven D. Stienstra and respondent Cedar Ridge Homeowners Association. It includes a short-answer quiz with an answer key, a series of essay questions for deeper analysis, and a glossary of key terms found in the legal decisions.
Short-Answer Quiz
Instructions: Answer the following questions in two to three complete sentences, drawing exclusively from the information provided in the case documents.
1. Who were the primary parties in this case, and what was the central issue that prompted the administrative hearing?
2. What specific violations of the CC&Rs did the homeowner, Steven Stienstra, or his son commit that initiated the dispute?
3. Describe the initial action taken by HOA President Bill Ferguson in April 2018 and explain why the Administrative Law Judge did not consider it a formal enforcement action.
4. The HOA’s attorneys sent three Cease & Desist letters. What was the primary demand of the first letter, and what financial demands were added in the second and third letters?
5. What were the two key sections of the CC&Rs at the center of the dispute, and what did each section generally govern?
6. Why did the Administrative Law Judge (ALJ) conclude that the HOA’s decision to proceed under Section 1.1 of the CC&Rs was inappropriate for the violations committed by the owner?
7. According to the ALJ’s decision, what specific procedural steps should the HOA have followed under Section 18 of the CC&Rs to properly enforce the covenants against an owner?
8. On what grounds did the Cedar Ridge HOA request a rehearing after the initial decision was issued in favor of the petitioner?
9. During the rehearing, the HOA introduced an “unclean hands” argument. What did this argument claim, and how did the ALJ respond to it?
10. What was the final, binding outcome of this case after the rehearing, including the ruling on attorney’s fees and the petitioner’s filing fee?
——————————————————————————–
Quiz Answer Key
1. The primary parties were the Petitioner, homeowner Steven D. Stienstra, and the Respondent, Cedar Ridge Homeowners Association (HOA). While the dispute began over rental violations, the central issue at the hearing was the liability for legal fees the HOA incurred and asserted were owed by the Petitioner.
2. The Petitioner’s son violated Section 1.1 of the CC&Rs by listing the property on VRBO for short-term rentals (less than 30 consecutive days) and producing revenue from January to April 2018. He also later posted on Facebook Marketplace offering to rent separate units within the home, which violated the rule requiring the lease of an “owner’s entire lot.”
3. HOA President Bill Ferguson made a phone call to Mr. Stienstra in April 2018 to bring the short-term rental violations to his attention. The ALJ characterized this as a “courtesy or informational call” and not a formal enforcement action because it did not comply with the written notice procedures required by either Section 1.1 or Section 18 of the CC&Rs.
4. The first letter (May 11, 2018) demanded that Stienstra cease all rentals of less than 30 days. The second letter (June 1, 2018) added a demand for $1,500 in attorney’s fees, and the third letter (June 17, 2018) increased this demand to $2,600.
5. The key sections were Section 1.1 and Section 18. Section 1.1 governed leasing requirements (e.g., minimum 30-day term) and detailed a process for an owner to take action against a non-compliant tenant (occupant). Section 18, titled “Enforcement of Covenants,” provided the formal process for the HOA Board to take action against a non-compliant owner.
6. The ALJ concluded that Section 1.1 was inappropriate because its enforcement mechanism empowers the HOA to act “on behalf of such owner against owner’s occupant” if the owner fails to do so. In this case, the HOA was taking direct action against the owner (Stienstra) for his own violations, a scenario that the ALJ determined was governed by Section 18.
7. Under Section 18, the HOA was required to notify the owner “in writing of the breach,” provide the owner 30 days to appear before the Board to respond, and then grant a reasonable time period (not to exceed 60 days) to remedy the breach before it could levy a fine.
8. The HOA requested a rehearing on the grounds that the ALJ’s decision was “arbitrary, capricious, and an abuse of discretion, and was not support by the evidence.” The HOA specifically alleged the ALJ had not considered evidence that it had reason to believe violations were continuing and had erred in interpreting the CC&Rs.
9. The HOA argued that because the Petitioner had admittedly violated the CC&Rs, he had “unclean hands” and therefore was not entitled to seek relief from the Department regarding the HOA’s actions. The ALJ noted that the remedy sought by the Petitioner was monetary (release from fees), not equitable, and the core issue remained whether the HOA’s enforcement actions were valid under its own governing documents.
10. The final outcome, upheld on rehearing, was that the Petitioner’s petition was granted. The HOA was ordered to reimburse Mr. Stienstra for his $500 filing fee, and the ALJ concluded that the asserted legal fees were not assignable to him due to the HOA’s failure to follow its own CC&R enforcement procedures.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate a comprehensive response to each question using only the facts and arguments presented in the provided legal decisions.
1. Analyze the procedural missteps made by the Cedar Ridge HOA Board in its enforcement actions against Steven Stienstra. How did its choice to proceed under Section 1.1 instead of Section 18 fundamentally undermine its position, according to the Administrative Law Judge?
2. Discuss the role of communication and miscommunication in escalating the conflict between Stienstra and the HOA. Use specific examples from the text, such as the Ferguson phone call, the continued VRBO listing, the HOA’s internal distrust, and the unofficial board meeting, to illustrate your points.
3. Evaluate the HOA’s argument on rehearing that its actions were protected because they acted in good faith based on the advice of their attorney, as allowed under A.R.S. § 10-3830. Why was this argument ultimately unpersuasive to the Administrative Law Judge?
4. The central issue in this case evolved from CC&R violations to a dispute over attorney’s fees. Trace this evolution, explaining how each Cease & Desist letter escalated the financial stakes and why the ALJ ultimately determined the fees were not assignable to Stienstra.
5. Compare and contrast the enforcement mechanisms detailed in Section 1.1 and Section 18 of the Cedar Ridge CC&Rs. Explain the specific purpose of each section and why applying the correct one was critical to the outcome of this case.
——————————————————————————–
Glossary
Definition
A.R.S. § 33-1806.01
An Arizona Revised Statute providing that a planned community property owner may use their property as a rental unless prohibited in the declaration and must abide by the declaration’s rental time period restrictions.
Administrative Law Judge (ALJ)
The official who presides over administrative hearings, hears evidence, and makes legal findings and rulings. In this case, the ALJ was Kay Abramsohn.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this proceeding, the Petitioner bore the burden of proving the HOA’s violations by a preponderance of the evidence.
Covenants, Conditions, and Restrictions. The governing legal documents that set forth the rules for a planned community or homeowners association.
Cease & Desist Letter
A formal written demand from an attorney or party to stop (cease) and not restart (desist) an allegedly illegal or infringing activity.
Declaration
The legal document that creates a homeowners association and its CC&Rs.
Forcible Entry and Detainer
A legal action, often used for eviction, to recover possession of real property from someone who is in wrongful possession. Section 1.1 mentions this as an action an owner could take against a non-compliant tenant.
A legal claim or right against a property to secure the payment of a debt. Section 18 of the CC&Rs allows the HOA to place a lien on a property for an unpaid special assessment or fine.
Occupant
As used in Section 1.1, refers to a tenant or lessee under a lease agreement, distinct from the property owner.
Petitioner
The party who files a petition initiating a legal or administrative action. In this case, homeowner Steven D. Stienstra.
Preponderance of the Evidence
The standard of proof in this case, meaning that the evidence as a whole shows that the fact sought to be proved is more probable than not.
Respondent
The party against whom a petition is filed. In this case, the Cedar Ridge Homeowners Association.
Special Assessment
A charge levied by an HOA against an owner for a specific purpose, such as repaying attorney’s fees incurred by the HOA or as a fine, as described in Sections 1.1 and 18.
Unclean Hands
A legal doctrine arguing that a party who has acted unethically or in bad faith in relation to the subject of a complaint should not be entitled to seek relief. The HOA raised this argument against the Petitioner on rehearing.
An Expedia Group website containing listings for vacation property rentals, which the Petitioner’s son used to list the property.
Case Participants
Petitioner Side
Steven D. Stienstra(petitioner) Appeared on his own behalf,.
Petitioner's son(witness) Related to Petitioner Managed rental property listings (referred to as 'Son'),,; testified at hearing,.
Keith D. Collett(HOA attorney) Jones, Skelton & Hochuli, PLC. Represented Cedar Ridge Homeowners Association/HOA,,.
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C. Represented Cedar Ridge Homeowners Association/HOA,.
Vic Burolla(board member) Cedar Ridge Homeowners Association HOA Board Secretary,,; witness at initial hearing,,; no longer Secretary by time of hearing,.
Bill Ferguson(board member) Cedar Ridge Homeowners Association HOA Board President,; no longer President by time of hearing,; witness at initial hearing.
Tucker(board member) Cedar Ridge Homeowners Association HOA Board Vice-president,; participated in September 4, 2018 meeting,.
Griffin(board member) Cedar Ridge Homeowners Association HOA Board Treasurer,; participated in September 4, 2018 meeting,.
Dick Ellis(board member) Cedar Ridge Homeowners Association May have attended portion of September 4, 2018 meeting,.
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge,,.
Judy Lowe(commissioner) Arizona Department of Real Estate Commissioner,,.
The Petitioner was the prevailing party. The ALJ affirmed that the HOA violated its CC&Rs regarding enforcement procedures, particularly by failing to adhere to Section 18 requirements and incorrectly applying Section 1.1 against the owner, rendering the legal fee demands improper. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,.
Why this result: The HOA failed to follow the explicit due process requirements (written notice and 30 days to appear) mandated by CC&Rs Section 18 for enforcement against the owner, and incorrectly relied on Section 1.1 to justify its demand for unauthorized flat fees,,,,.
Key Issues & Findings
HOA enforcement action regarding CC&R violations and asserted legal fees
Petitioner challenged the HOA's enforcement actions regarding short-term rentals and leasing less than the entire lot. The ALJ found the HOA proceeded inappropriately under Section 1.1 (intended for action against occupants on the owner's behalf) and failed to follow the mandatory enforcement requirements of Section 18, thus violating its own CC&Rs. Consequently, the asserted legal fees were not assigned to Petitioner,,,.
Orders: The Petition was granted. The HOA was ordered to reimburse the Petitioner the $500.00 filing fee,. The asserted legal fees of $1,500 and $2,600 sought by the HOA were determined not to be assignable to the Petitioner,.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1806.01
CC&Rs Section 1.1
CC&Rs Section 18
Analytics Highlights
Topics: HOA Enforcement, CC&R Violation, Legal Fees, Due Process, Rental Restriction
Additional Citations:
A.R.S. § 33-1806.01
CC&Rs Section 1.1
CC&Rs Section 18
A.R.S. § 10-3830
Decision Documents
19F-H1918033-REL Decision – 753362.pdf
Uploaded 2025-12-17T18:17:14 (169.0 KB)
Case Participants
Petitioner Side
Steven D. Stienstra(petitioner) Appeared on his own behalf for the hearing and rehearing.
Petitioner's son(witness/property manager) Managed rental schedule and set up VRBO account; lived in the home.
Respondent Side
Michelle Molinario(HOA attorney) Jones, Skelton & Hochuli, PLC. Represented the HOA at the initial hearing.
Keith D. Collett(HOA attorney) Jones, Skelton & Hochuli, P.L.C. Represented the HOA at the hearing and rehearing.
Diana J. Elston(HOA attorney) Jones, Skelton & Hochuli, P.L.C. Represented the HOA at the rehearing.
Vic Burolla(board member/witness) Cedar Ridge Homeowners Association Former HOA Secretary; testified and attended the September 4, 2018 meeting.
Bill Ferguson(board member/witness) Cedar Ridge Homeowners Association Former HOA Board President; initiated the initial phone call to Petitioner about the violation.
Tucker(board member/vice-president) Cedar Ridge Homeowners Association HOA Vice-president; attended the September 4, 2018 meeting.
Griffin(board member/treasurer) Cedar Ridge Homeowners Association HOA Treasurer; attended the September 4, 2018 meeting.
Dick Ellis(board member) Cedar Ridge Homeowners Association May have attended the September 4, 2018 meeting.
Neutral Parties
Kay Abramsohn(ALJ) Office of Administrative Hearings Administrative Law Judge for the Decision and Rehearing Decision.
Judy Lowe(Commissioner) Arizona Department of Real Estate Commissioner.
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
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 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2025-10-09T03:34:47 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties 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.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
Select all sources
778923.pdf
No emoji found
Loading
20F-H2019033-REL
1 source
This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The Petition was upheld on all issues asserted by the Petitioner. The Respondent was found in violation of A.R.S. § 33-1250(C) (failure to provide election documents), A.R.S. § 33-1248(B) (failure to hold an annual meeting in 2019), and Article 3, Section 2 of the Bylaws (improperly prohibiting write-in ballots). Respondent was ordered to supply Petitioner with relevant documents and refund the Petitioner's filing fee of $1,500.00. No Civil Penalty was found appropriate.
Respondent failed to provide Petitioner with the required election materials and documentation from the October 2018 elections, violating statutory requirements for retention and availability of these materials for owner inspection.
Orders: Respondent ordered to supply Petitioner with the relevant documents, pursuant to A.R.S. § 33-1250(C), within ten (10) days of the Order.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1250(C)
Open meetings; exceptions
Respondent postponed its required yearly 2019 meeting until January 2020, resulting in a failure to hold a unit owners' association meeting in 2019 as required by statute.
Orders: Petition upheld on this issue.
Filing fee: $1,500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1248(B)
Selection
Respondent's board of directors declared write-in ballots invalid for the November 20, 2019, election. Since the Bylaws were silent on prohibiting write-in ballots, Respondent failed to show how the ballots were invalid.
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 1220 (8th ed. 1999)
Video Overview
Audio Overview
Decision Documents
20F-H2019033-REL Decision – 778923.pdf
Uploaded 2026-01-23T17:31:15 (108.5 KB)
Briefing Doc – 20F-H2019033-REL
Briefing Document: Bischoff v. Country Hills West Condominium Association
Executive Summary
This document synthesizes the findings and decision in the case of Donna M. Bischoff v. Country Hills West Condominium Association, Inc. (No. 20F-H2019033-REL), heard by the Arizona Office of Administrative Hearings. The Administrative Law Judge found entirely in favor of the Petitioner, Donna M. Bischoff, concluding that the Respondent, Country Hills West Condominium Association (“the Association”), committed multiple violations of Arizona state statutes and its own governing documents.
The core violations upheld by the court are:
1. Failure to Hold a Required Annual Meeting: The Association violated A.R.S. § 33-1248(B) by failing to hold its required annual meeting within the 2019 calendar year, repeatedly postponing it until January 2020.
2. Failure to Provide Election Records: The Association violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with complete election materials for inspection, including ballots, envelopes, and sign-in sheets from the October 2018 election.
3. Improper Prohibition of Write-In Ballots: The Association violated Article 3, Section 2 of its Bylaws by unilaterally prohibiting write-in ballots for the 2019 election, despite its governing documents being silent on the issue.
As a result, the Association was ordered to provide the requested documents to the Petitioner within ten days and to reimburse her $1,500 filing fee within thirty days. The decision underscores the legal obligation of homeowners’ associations to adhere strictly to statutory requirements for meetings, elections, and record transparency.
——————————————————————————–
I. Case Overview
The dispute was adjudicated by the Office of Administrative Hearings following a petition filed by homeowner Donna M. Bischoff with the Arizona Department of Real Estate on December 11, 2019.
Case Detail
Information
Case Name
Donna M Bischoff, Petitioner, v. Country Hills West Condominium Association, Inc., Respondent
Case Number
20F-H2019033-REL
Adjudicator
Administrative Law Judge Antara Nath Rivera
Hearing Date
March 10, 2020
Decision Date
March 30, 2020
Petitioner Representative
Donna M. Bischoff (on her own behalf)
Respondent Representative
Doug Meyer, President and Director
II. Petitioner’s Allegations
The Petitioner, Donna M. Bischoff, asserted that the Country Hills West Condominium Association committed violations of state law and its own governing documents. The specific allegations were:
• Violation of A.R.S. § 33-1248(B): Failure to hold the mandatory annual unit owners’ association meeting within the 2019 calendar year.
• Violation of A.R.S. § 33-1250(C): Failure to make election materials, including ballots and related items, available for inspection by a unit owner.
• Violation of Bylaws Article 3, Section 2: Improperly invalidating election ballots by prohibiting write-in candidates without any authority from the governing documents.
The Petitioner bore the burden of proof to establish these violations by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”
III. Core Issues and Factual Findings
The hearing established several key facts that formed the basis of the Judge’s decision. The testimony from both Ms. Bischoff and the Association’s President, Doug Meyer, was central to these findings.
A. Failure to Hold the 2019 Annual Meeting
• Timeline of Events: The Association’s required annual meeting for 2019 was initially scheduled for November 20, 2019. It was subsequently postponed three times: first to December 19, 2019; then to December 30, 2019; and ultimately held on January 24, 2020.
• Respondent’s Justification: Mr. Meyer testified that the postponements were necessary because write-in candidates appeared on the ballot, which the board had prohibited. He stated that the board “needed time to reprint the ballot and mail them out.”
• Conclusion of Law: The evidence was undisputed that no annual meeting took place during the 2019 calendar year. The Judge concluded that by postponing the meeting into the following year, the Association was in direct violation of A.R.S. § 33-1248(B), which mandates that “A meeting of the unit owners’ association shall be held at least once each year.”
B. Denial of Access to Election Records
• Petitioner’s Request: In October 2018, Ms. Bischoff requested to see the election results from the October 2018 meeting, specifically seeking to know which units had voted.
• Respondent’s Response: The Association initially did not provide the results. A few weeks prior to the March 2020 hearing, it supplied Ms. Bischoff with vote tallies and a list of unit members who voted. However, it failed to provide the full scope of required materials.
• Missing Documentation: The Association did not provide the “ballots, envelopes, related materials, and sign-in sheets” as mandated by statute for inspection.
• Respondent’s Justification: Mr. Meyer argued that no election actually occurred at the October 18, 2018, meeting because there was no quorum. He further made the admission that the Association had not achieved a quorum for any meeting in the preceding 20 years. He claimed that without an election, there was no obligation to publish ballots.
• Conclusion of Law: The Judge found that the Association violated A.R.S. § 33-1250(C). The statute requires that “Ballots, envelopes and related materials… shall be retained… and made available for unit owner inspection for at least one year.” The partial and delayed provision of records was insufficient to meet this legal requirement.
C. Improper Prohibition of Write-In Ballots
• The Dispute: The November 20, 2019, meeting was cancelled because some ballots contained write-in candidates. The board of directors informed members that write-in ballots were prohibited and would be “thrown out.”
• Petitioner’s Argument: Ms. Bischoff argued that the board could not “choose how to interpret a silent document.” She pointed out that the Bylaws and Articles of Incorporation do not prohibit write-in ballots and that the same board had allowed them in a 2017 election.
• Respondent’s Position: Mr. Meyer acknowledged that the Bylaws were silent on the issue but stated the Association needed to “figure out how to handle” them. A membership meeting to discuss the issue was held on December 30, 2019, but failed to achieve a quorum.
• Conclusion of Law: The Judge determined that the Association violated its own Bylaws. The decision states, “absent any clear language in the A.R.S. or the Bylaws prohibiting write in ballots, Respondent failed to show how the ballots were invalid.” The board’s unilateral prohibition was therefore found to be improper.
IV. Legal Conclusions and Final Order
The Administrative Law Judge upheld the petition on all issues, finding that the Petitioner had successfully proven her case by a preponderance of the evidence.
Final Order:
Based on the foregoing conclusions, IT IS ORDERED that:
1. The Petition filed by Donna M. Bischoff is upheld on all issues.
2. The Petitioner is deemed the prevailing party in the matter.
3. The Respondent must supply the Petitioner with the relevant election documents pursuant to A.R.S. § 33-1250(C) within ten (10) days of the Order.
4. The Respondent must pay the Petitioner’s filing fee of $1,500.00 directly to the Petitioner within thirty (30) days of the Order.
5. No Civil Penalty is found to be appropriate in this matter.
The Order is binding on the parties 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.
Study Guide – 20F-H2019033-REL
Study Guide: Bischoff v. Country Hills West Condominium Association, Inc.
This study guide provides a review of the Administrative Law Judge Decision in case number 20F-H2019033-REL, concerning a dispute between a homeowner and a condominium association. It includes a quiz with an answer key, essay questions for deeper analysis, and a glossary of key terms found in the source document.
——————————————————————————–
Short-Answer Quiz
Instructions: Answer the following questions in 2-3 sentences each, based on the provided source document.
1. Who were the primary parties in the legal dispute, and what were their roles?
2. What specific violations did the Petitioner, Donna M. Bischoff, allege against the Respondent?
3. Why was the 2019 yearly meeting for the Country Hills West Condominium Association repeatedly rescheduled?
4. What was the Respondent’s position on the validity of write-in ballots for the November 20, 2019, election?
5. What information did the Petitioner request from the October 2018 election, and what was the initial response?
6. What is the definition of “quorum” according to the association’s Bylaws, and why was it significant in this case?
7. What is the legal standard of proof the Petitioner was required to meet in this hearing?
8. According to the decision, how did the Respondent violate A.R.S. § 33-1248(B) regarding association meetings?
9. According to the decision, how did the Respondent violate A.R.S. § 33-1250(C) regarding election materials?
10. What were the key components of the final Order issued by the Administrative Law Judge?
——————————————————————————–
Answer Key
1. The primary parties were Donna M. Bischoff, the Petitioner, and the Country Hills West Condominium Association, Inc., the Respondent. The Petitioner is the homeowner who filed the complaint, and the Respondent is the homeowners association accused of violations.
2. The Petitioner alleged violations of Arizona Revised Statutes (A.R.S.) § 33-1250(C) and § 33-1248(B), as well as Article 3, Section 2 of the association’s Bylaws. These allegations related to the handling of yearly meetings and elections.
3. The 2019 yearly meeting was initially scheduled for November 20, 2019, but was rescheduled three times, ultimately taking place in January 2020. The first cancellation was because some ballots contained write-in candidates, which the board deemed prohibited.
4. The Respondent’s representative, Doug Meyer, testified that members were informed that write-in ballots were not valid for the November 20, 2019, election. He stated that any ballots with write-in candidates would have been thrown out.
5. The Petitioner requested to see the election results from the October 2018 election, specifically wanting to know which units voted. While she was eventually given the voting tallies, the Respondent did not initially provide the requested results.
6. Quorum is defined in Article 4, Section 3 of the Bylaws. It was significant because the Respondent’s president, Mr. Meyer, acknowledged that the association had not achieved a quorum for its meetings in the last 20 years, and thus no election occurred at the October 18, 2018, meeting.
7. The Petitioner had the burden of proof to establish the alleged violations by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that a contention is more probably true than not.
8. The Respondent violated A.R.S. § 33-1248(B) by failing to hold a required yearly meeting within the calendar year of 2019. The evidence showed that the meeting scheduled for 2019 was postponed until January 2020.
9. The Respondent violated A.R.S. § 33-1250(C) by failing to provide the Petitioner with all required election materials from the 2018 election. While vote tallies were eventually provided, the statute requires that ballots, envelopes, and related materials be retained and made available for inspection for at least one year.
10. The Administrative Law Judge’s Order upheld the Petition on all issues, deemed the Petitioner the prevailing party, and required the Respondent to supply the relevant documents within 10 days. The Order also mandated that the Respondent reimburse the Petitioner’s filing fee of $1,500.00 within 30 days.
——————————————————————————–
Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the information presented in the source document to construct a comprehensive argument for each prompt.
1. Analyze the Respondent’s handling of the write-in ballot issue for the 2019 election. Discuss the legal basis (or lack thereof) for their actions as presented in the hearing, and explain why the Administrative Law Judge ultimately ruled that their prohibition of these ballots was a violation of the Bylaws.
2. Explain the concept of “quorum” as it relates to this case. How did the association’s failure to achieve a quorum for 20 years impact its governance, specifically regarding the 2018 meeting and the Respondent’s obligation to produce election records?
3. Describe in detail the specific violations of the Arizona Revised Statutes (A.R.S.) that the Country Hills West Condominium Association was found to have committed. For each statute (A.R.S. § 33-1248(B) and A.R.S. § 33-1250(C)), detail the legal requirement and explain how the Respondent’s actions failed to meet that standard.
4. Discuss the legal standard of “preponderance of the evidence.” Using testimony and evidence presented by both the Petitioner and the Respondent, explain how the Petitioner successfully met this burden of proof for her allegations.
5. Outline the final Order issued by the Administrative Law Judge. Beyond the simple outcome, explain the significance of each component of the order, including the validation of the petition, the designation of a “prevailing party,” the directive to supply documents, and the financial remedy awarded.
——————————————————————————–
Glossary of Key Terms
Definition
Administrative Law Judge
An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions and orders. In this case, Antara Nath Rivera.
Arizona Department of Real Estate (Department)
The state agency with which a homeowner or planned community organization can file a petition for a hearing concerning violations of community documents or statutes.
Arizona Revised Statutes (A.R.S.)
The collection of laws enacted by the Arizona state legislature. The specific statutes cited were A.R.S. §§ 33-1250(C) and 33-1248(B).
Bylaws
The rules and regulations that govern the internal operations of an organization, such as a homeowners association. In this case, the Bylaws of Country Hills West Association, Inc. were a key document.
Homeowners Association (HOA)
An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents.
Office of Administrative Hearings
The state agency where petitions filed with the Department of Real Estate are heard before an Administrative Law Judge.
Petitioner
The party who files a petition or brings a legal action against another party. In this case, Donna M. Bischoff.
Preponderance of the evidence
The standard of proof in this civil administrative case. It is met when the evidence presented is sufficient to “incline a fair and impartial mind to one side of the issue rather than the other.”
Quorum
The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid. The Respondent had not achieved quorum for 20 years.
Respondent
The party against whom a petition is filed or a legal action is brought. In this case, Country Hills West Condominium Association, Inc.
Blog Post – 20F-H2019033-REL
Select all sources
778923.pdf
No emoji found
Loading
20F-H2019033-REL
1 source
This source is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Donna M. Bischoff, the Petitioner, and Country Hills West Condominium Association, Inc., the Respondent. The document details the hearing held on March 10, 2020, where the Petitioner alleged the Condominium Association violated Arizona Revised Statutes (A.R.S.) and the association’s Bylaws. Specifically, the Petitioner claimed violations related to the failure to hold a required yearly meeting in 2019, the failure to provide election materials for inspection, and the improper prohibition of write-in ballots where the Bylaws were silent. The Administrative Law Judge ultimately upheld the Petition on all issues, finding the Respondent in violation, and ordered the Association to provide the requested documents and pay the Petitioner’s $1,500.00 filing fee.
What were the specific legal violations found against the Condominium Association regarding meetings and documents?
How did the lack of clarity in the Bylaws regarding write-in ballots impact the association’s actions?
What was the ultimate outcome of this administrative hearing, including the ordered remedies for the petitioner?
Based on 1 source
Case Participants
Petitioner Side
Donna M Bischoff(petitioner) Appeared on her own behalf
Respondent Side
Doug Meyer(president, director, witness) Country Hills West Condominium Association, Inc. Appeared and testified on behalf of Respondent
Neutral Parties
Antara Nath Rivera(ALJ) OAH
Judy Lowe(commissioner) Arizona Department of Real Estate Decision transmitted electronically to Commissioner
The HOA prevailed on all three complaints regarding records, fee increases, and meeting notices. Petitioner failed to prove violations.
Why this result: Petitioner failed to prove violations by a preponderance of the evidence; HOA complied with statutes regarding record provision and meeting notice mailing; fee increase vote was valid without proxy.
Key Issues & Findings
Records Request Violation
Petitioner alleged HOA failed to provide requested records. ALJ found HOA reasonably clarified burdensome requests and provided available records timely.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1805
Invalid Fee Increase / Proxy Vote
Petitioner alleged a $5 fee increase was invalid due to a proxy vote. ALJ found the proxy vote was not included in final valid count which met 2/3 requirement.
Orders: Petitioner's claim denied; HOA prevailed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 33-1812(A)
Meeting Notice Violation
Petitioner alleged meeting notice was not received 10 days prior. ALJ ruled mailing at UPS contract postal unit 13 days prior satisfied 'sent' requirement.
**Case Title:** *Gregory L. Czekaj v. Colonia Del Rey HOA, Inc.*
**Case Number:** 19F-H1918040-REL-RHG
**Date of Rehearing Decision:** March 25, 2020
**Procedural Status: Rehearing**
This summary details a **rehearing** of a dispute initially decided on July 8, 2019. The rehearing was granted by the Arizona Department of Real Estate Commissioner after the Petitioner alleged procedural errors regarding the retroactive swearing-in of witnesses during the initial hearing,. This summary distinguishes between the original findings and the rehearing analysis where applicable.
**Background**
The case involves a Homeowners Association (HOA) comprised of nine homes. The Petitioner, a homeowner, filed three complaints alleging statutory violations. The HOA filed a counter-petition (Complaint Four) regarding the Petitioner's conduct,.
**Complaint One: Records Requests**
* **Issue:** Petitioner alleged the HOA failed to provide requested records in violation of A.R.S. § 33-1805.
* **Original Decision:** The Administrative Law Judge (ALJ) ruled the HOA prevailed. The ALJ found Petitioner’s request for "any and all" records burdensome and determined the HOA complied timely with clarified requests,.
* **Rehearing Proceedings:** Petitioner argued his requests were not burdensome and claimed the HOA "refused" access, citing the 1984 CC&Rs and the lack of a physical business office as violations,. The HOA noted it has no office and records are kept in volunteers' homes.
* **Rehearing Outcome:** The ALJ affirmed that the request for "any and all" documents was burdensome. The HOA satisfied its obligations by emailing documents and facilitating a records review session,. The ALJ ruled the HOA never refused records and remained the prevailing party,.
**Complaint Two: Fee Increase Validity**
* **Issue:** Petitioner argued a $5 fee increase was invalid because the vote utilized a proxy, which he claimed violated A.R.S. § 33-1812.
* **Original Decision:** The ALJ found that although a proxy was discussed, it was not counted in the final tally. The valid vote count (5 YES, 1 NO) met the requirement of 2/3 of votes cast.
* **Rehearing Proceedings:** Petitioner argued that passage required six votes (2/3 of the membership). The HOA clarified that the governing documents require 2/3 of *votes cast*. Petitioner also attempted to introduce new arguments regarding ballot formatting, which the
Case Participants
Petitioner Side
Gregory L. Czekaj(Petitioner) Homeowner Appeared on his own behalf
Gary Wolf(Petitioner's Attorney) Contacted HOA attorney regarding records
Respondent Side
Marybeth Andree(HOA President) Colonia Del Rey HOA, Inc. Represented the HOA; also Secretary during some events
Carolyn Goldschmidt(HOA Attorney) Responded to records requests
Phil Oliver(Witness) Colonia Del Rey HOA, Inc. Former HOA President
Susan Sotelo(Witness) Colonia Del Rey HOA, Inc. Former HOA Secretary; testified regarding mailing of notices
Les Andree(Attendee) Marybeth Andree's husband; present at May 6, 2017 meeting
Neutral Parties
Kay Abramsohn(Administrative Law Judge) Office of Administrative Hearings
Mr. Tick(Witness) Insurance Agent Testified regarding HOA insurance policy request
Damian Schaffer(Witness) UPS Store UPS store clerk
Ed Freeman(Tenant) Involved in proxy vote issue; ineligible to vote
Sarah Hitch(Proxy Holder) Tenant who cast proxy vote
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of the order
Other Participants
Maryanne Beerling(Member) Colonia Del Rey HOA, Inc. Present at May 6, 2017 meeting
The Petitioner's dispute petition was dismissed because the Petitioner failed to meet the burden of proof that the HOA violated its governing documents regarding the denial of a retroactively submitted view fence modification.
Why this result: Petitioner failed to meet the burden of proof to establish the HOA violated its CC&Rs or Design Guidelines. Specifically, the Petitioner did not establish he rightfully sought approval prior to installing the fence.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA violated community documents by denying approval for a glass view fence installed without prior approval. The ALJ found Petitioner failed to establish the HOA violated its documents, as Petitioner did not follow required procedures for seeking approval.
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
Uploaded 2025-10-09T03:34:30 (42.2 KB)
20F-H2019003-REL-RHG Decision – 775433.pdf
Uploaded 2025-10-09T03:34:30 (123.4 KB)
Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
Cimarron Hills at McDowell Mountain Homeowners Association
Counsel
Mark K. Sahl
Alleged Violations
Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3
Outcome Summary
The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.
Case Summary
Case ID
20F-H2019003-REL-RHG
Agency
ADRE
Tribunal
OAH
Decision Date
2020-03-16
Administrative Law Judge
Antara Nath Rivera
Outcome
none
Filing Fees Refunded
$0.00
Civil Penalties
$0.00
Parties & Counsel
Petitioner
Will Schreiber
Counsel
Aaron M. Green
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association
Counsel
Mark K. Sahl
Alleged Violations
Design Guidelines HH Walls/View Fences and CC&R’s Article 12.3
Outcome Summary
The Administrative Law Judge decision, issued following a rehearing, dismissed the Petitioner's dispute petition, finding that the Petitioner failed to meet the burden of proof to show the HOA violated its governing documents by reasonably denying the retroactive application for the unapproved glass view fence.
Why this result: Petitioner installed the fence prior to seeking approval, failing to comply with the procedural requirements (Design Guidelines Section HH). Consequently, the HOA's denial based on consistency and maintenance concerns was deemed reasonable.
Key Issues & Findings
HOA's denial of Petitioner's glass view fence modification
Petitioner alleged the HOA improperly denied the retroactive approval of a glass view fence installed without prior permission. The ALJ found that Petitioner failed to establish by a preponderance of the evidence that he rightfully sought approval pursuant to Design Guidelines Section HH, and that the Respondent's denial was reasonable due to procedural failure, community inconsistency (Design Guidelines Section E), and liability/maintenance concerns (CC&R Article 12.3).
Orders: Petitioner Will Schreiber’s Petition was dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
Cited:
A.R.S. § 32-2199(B)
A.R.S. § 33-1803
A.R.S. § 41-1092.07(G)(2)
A.A.C. R2-19-119(A)
A.A.C. R2-19-119(B)(1)
A.A.C. R2-19-119(B)(2)
CC&R’s Article 12.3
Design Guidelines Section HH
Design Guidelines Section E
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
Video Overview
Audio Overview
Decision Documents
20F-H2019003-REL-RHG Decision – 769789.pdf
Uploaded 2026-01-23T17:30:11 (42.2 KB)
20F-H2019003-REL-RHG Decision – 775433.pdf
Uploaded 2026-01-23T17:30:17 (123.4 KB)
Briefing Doc – 20F-H2019003-REL-RHG
Briefing Document: Schreiber v. Cimarron Hills HOA
Executive Summary
This document synthesizes the legal proceedings and outcome of the dispute between homeowner Will Schreiber (Petitioner) and the Cimarron Hills at McDowell Mountain Homeowners Association (Respondent) concerning an unapproved glass fence. The case, adjudicated by the Arizona Office of Administrative Hearings, centered on Mr. Schreiber’s retroactive application for a glass view fence he installed without prior permission, which replaced a wrought iron fence.
The Homeowners Association (HOA) denied the application, citing a lack of consistency with community design standards, as well as significant maintenance and liability concerns stipulated in the governing documents. The Petitioner argued the denial was unreasonable, asserting that a glass fence is visually similar to having no fence (an approved option), that the HOA failed to provide a valid reason for denial, and that safety concerns were unfounded.
The Administrative Law Judge (ALJ) ultimately dismissed Mr. Schreiber’s petition. The final decision concluded that the Petitioner failed to meet the burden of proof showing the HOA had violated its own rules. The ruling affirmed that the HOA’s denial was reasonable because the Petitioner did not follow the required procedure of seeking approval before installation, as mandated by the community’s Design Guidelines. The decision underscored the HOA’s right to enforce uniformity and manage its maintenance and liability responsibilities as defined in its Covenants, Conditions, and Restrictions (CC&Rs).
Case Identification and Participants
Detail
Information
Case Name
Will Schreiber, Petitioner, vs. Cimarron Hills at McDowell Mountain Homeowners Association, Respondent
Case Number
20F-H2019003-REL-RHG
Tribunal
Office of Administrative Hearings (Arizona)
Administrative Law Judge
Antara Nath Rivera
Petitioner
Will Schreiber
Petitioner’s Counsel
Aaron M. Green, Esq.
Respondent
Cimarron Hills at McDowell Mountain Homeowners Association (a subdivision of McDowell Mountain Ranch Homeowners Association)
Respondent’s Counsel
Nick Nogami, Esq. (at hearing); Mark K. Sahl, Esq. (on record)
Property Address
11551 East Caribbean Lane, Scottsdale, Arizona, 85255
Procedural History and Timeline
1. November 2017: Petitioner submitted an architectural form for backyard work, which was approved by the HOA’s Design Review Committee (DRC). This submission did not mention any changes to fencing.
2. January 2019: During a violation tour, the HOA discovered that Petitioner had replaced the pre-existing wrought iron view fencing with an unapproved glass fence.
3. January 24, 2019: After being contacted by the HOA, Petitioner submitted a second variance request seeking retroactive approval for the installed glass fence.
4. March 5, 2019: The HOA sent a letter to Petitioner requesting that the fence be returned to its original wrought iron condition.
5. May 10, 2019: The HOA officially notified Petitioner that his appeal was denied because the application was not filed in a timely manner (i.e., prior to installation).
6. July 2, 2019: Petitioner filed a Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate, alleging violations of community documents.
7. August 9, 2019: The HOA filed its Answer, denying all claims, and a Motion to Dismiss.
8. October 2, 2019: The Administrative Law Judge (ALJ) granted the HOA’s Motion to Dismiss.
9. December 10, 2019: The Department of Real Estate issued a Notice of Rehearing.
10. January 30, 2020: A rehearing was held before the Office of Administrative Hearings.
11. February 4, 2020: The HOA’s counsel submitted a Posthearing Memorandum without leave from the tribunal.
12. February 14, 2020: The ALJ issued an order reopening the record solely to allow the Petitioner an opportunity to respond to the HOA’s unauthorized filing by February 24, 2020.
13. March 16, 2020: The ALJ issued the final decision, ordering that the Petitioner’s petition be dismissed.
Analysis of Arguments
Petitioner’s Position (Will Schreiber)
The Petitioner’s case rested on the argument that the HOA’s denial of his glass fence was arbitrary and unreasonable.
• Lack of Justification: Petitioner claimed the HOA’s Design Review Committee (DRC) met with him but failed to provide any verbal or written reasons for the initial disapproval.
• Aesthetic and Functional Equivalence: He argued a glass fence is “just as invisible” as having no fence at all, an option permitted by the HOA. He contended that since his neighbor did not have a wrought iron fence, denying his glass fence on grounds of consistency was illogical.
• Safety and Maintenance: Petitioner asserted that the safety glass used was comparable to that of the Grand Canyon Skywalk and had been inspected and approved by a Scottsdale City Inspector. He argued the HOA’s concerns about safety, fire barriers, and continuity were manufactured “excuses.” He also offered to waive the HOA’s maintenance responsibility for the fence.
• Procedural Failure: The core of the petition was the allegation that the HOA violated its own community documents, specifically “Design Guidelines HH Walls/View Fences and CC&R’s Article 12.”
Respondent’s Position (Cimarron Hills HOA)
The HOA’s defense, presented primarily through the testimony of Whitney Bostic, focused on procedural compliance, community uniformity, and non-negotiable maintenance responsibilities.
• Violation of Process: The HOA established that the Petitioner installed the glass fence prior to seeking approval, in direct violation of the Design Guidelines which require submission of detailed plans for any view fence modifications. His approved 2017 plans made no mention of fencing.
• Lack of Consistency: Ms. Bostic testified that out of 656 homes in the Cimarron Hills subdivision and 3,800 homes in the master McDowell Mountain Ranch association, none had a glass fence. The established design standard allows only for a wrought iron fence or no fence at all to maintain community conformity.
• Maintenance and Liability: The HOA argued that under Article 12.3 of the CC&Rs, it is legally responsible for maintaining the exterior half of all boundary view fences and the five-foot easement from the boundary wall. This responsibility cannot be waived by a homeowner. A glass fence introduces unique maintenance concerns and liability risks, such as shards of glass falling into an area of HOA responsibility.
• Multi-Level Review: The decision to deny the request was made after consideration by both the Cimarron Hills DRC and the master association (MMRHA), which weighed factors of consistency, responsibility, and maintenance before issuing a denial.
Governing Documents Cited
The decision in this case was based on the interpretation of several key sections of the community’s governing documents.
• CC&Rs Article 12.3 (Boundary Walls and Association Responsibility): This article explicitly states that the Association “shall be responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.” This formed the basis of the HOA’s argument regarding non-waivable liability and maintenance obligations.
• Design Guidelines Section HH (View Fencing): This section mandates that “The Owner shall submit for approval from the DRC including detailed drawings of proposed changes… for view fence modifications.” The Petitioner’s failure to do this prior to installation was a central fact in the case. It also specifies the approved paint color for fences, “MMR Brown Fence.”
• Design Guidelines Section E (General Principles): This section outlines the DRC’s goal to “maintain consistency of the community and of its decisions.” It notes that variances may be granted but “shall remain consistent with the architectural and neighborhood characteristics.” This supported the HOA’s argument against introducing a unique fence type.
• Design Guidelines Section GG (View Decks): While pertaining to decks, this section was cited to show the level of detail required in applications to the DRC, including materials, dimensions, and impact on views, underscoring the formal process the Petitioner bypassed.
Administrative Law Judge’s Decision and Rationale
The ALJ, Antara Nath Rivera, dismissed Will Schreiber’s petition, finding in favor of the Cimarron Hills HOA.
• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the HOA violated Article 12.3 of its CC&Rs.
• Failure to Follow Procedure: The judge concluded that the Petitioner “failed to establish by a preponderance of the evidence that he rightfully sought approval to change his existing fence, pursuant to Section HH of the Design Guidelines.” The key issue was not the aesthetics of the fence, but the Petitioner’s failure to abide by the required approval process before installation.
• Reasonableness of Denial: The ALJ found that the “Respondent was reasonable in its denial” and “did not violate any rules or regulations.” The evidence demonstrated that the HOA’s decision was based on established principles of uniformity, consistency, and its obligations under the CC&Rs.
• Final Order: The petition was formally dismissed. The order noted that as a decision from a rehearing, it is binding on the parties. Any appeal must be filed with the superior court within thirty-five days of the order’s service date.
Study Guide – 20F-H2019003-REL-RHG
Study Guide: Schreiber v. Cimarron Hills HOA
This guide provides a detailed review of the administrative case between Will Schreiber and the Cimarron Hills at McDowell Mountain Homeowners Association, based on the provided legal documents. It is designed to test and reinforce understanding of the case’s facts, legal arguments, and procedural history.
Short-Answer Quiz
Answer each of the following questions in two to three sentences, drawing exclusively from the provided source documents.
1. Who were the primary parties involved in this case, and what were their respective roles?
2. What specific action did the Petitioner, Will Schreiber, take that initiated the dispute with the Homeowners Association?
3. According to the Respondent, what were the primary reasons for denying the Petitioner’s request for the glass fence?
4. What was the Petitioner’s core argument regarding the fairness of the Respondent’s denial, particularly in relation to his neighbor?
5. What was the legal standard of proof required for the Petitioner to win his case, and did he meet it?
6. Identify two specific governing documents that were central to the Respondent’s defense and the final ruling.
7. Who was Whitney Bostic, and what key information did her testimony provide during the rehearing?
8. What procedural event occurred on or about February 4, 2020, that prompted the Administrative Law Judge to issue the “Order Holding Record Open” on February 14, 2020?
9. According to the CC&Rs, who is responsible for maintaining the “Boundary Wall” that separates a lot from an “Area of Association Responsibility”?
10. What was the final outcome of the administrative rehearing held on January 30, 2020?
Answer Key
1. The primary parties were Will Schreiber, the Petitioner and homeowner, and the Cimarron Hills at McDowell Mountain Homeowners Association, the Respondent. Mr. Schreiber filed a petition against the HOA, alleging a violation of community documents after they denied his request for a fence modification.
2. Mr. Schreiber replaced his preexisting wrought iron view fencing with glass fencing without first receiving approval from the HOA’s Design Review Committee (DRC). He then submitted a variance request on January 24, 2019, seeking retroactive approval for the already-installed fence.
3. The Respondent denied the request based on several factors, including the need for design consistency across the community’s 656 homes, as no other home had a glass fence. They also cited maintenance concerns and potential liability, as the HOA is responsible for the exterior half of view fences and a five-foot easement from the boundary wall.
4. The Petitioner argued that the denial was unreasonable because his neighbor was allowed to have no fence at all. He contended that a glass fence was “just as invisible” as no fence and that the concept was essentially the same.
5. The Petitioner bore the burden of proof to establish his case by a “preponderance of the evidence,” which means convincing the judge that his contention was more probably true than not. The Administrative Law Judge concluded that the Petitioner failed to meet this burden.
6. The two central documents were the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills (CC&Rs) and the Cimarron Hills Design Guidelines For Community Living (Design Guidelines). The Respondent specifically cited Sections E (General Principles), GG (View Decks), and HH (Walls/View Fences) of the Design Guidelines.
7. Whitney Bostic testified on behalf of the Respondent HOA. She explained that the glass fence was unapproved, inconsistent with the 656 homes in the community, and posed maintenance and liability concerns for the HOA.
8. Counsel for the Respondent submitted a Posthearing Memorandum and Proposed Findings of Fact and Conclusions of Law without having been granted permission (leave) by the tribunal. Because the Petitioner did not have an opportunity to respond, the judge reopened the record to allow him to do so by February 24, 2020.
9. According to Article 12.3 of the CC&Rs, the resident is responsible for their side of the wall, but the Association is responsible for the repair and maintenance of the side of the Boundary Wall which faces the Area of Association Responsibility.
10. The Administrative Law Judge ordered that Petitioner Will Schreiber’s Petition be dismissed. The judge found that the Respondent HOA’s denial of the glass fence was reasonable and that it did not violate any of its rules or regulations.
Essay Questions
The following questions are designed for longer, more analytical responses. Formulate an argument using only the evidence and facts presented in the source documents.
1. Analyze the procedural timeline of the case from the initial filing of the petition on July 2, 2019, to the final decision on March 16, 2020. Discuss the significance of the initial dismissal, the subsequent rehearing, and the order to reopen the record.
2. Examine the concept of “consistency” as described in Section E of the Design Guidelines. How did this principle form the foundation of the Respondent’s case, and why was it a more compelling argument than the Petitioner’s claims about aesthetics and safety?
3. The Petitioner argued that since his neighbor was permitted to have no fence, his “invisible” glass fence should also be permitted. Deconstruct this argument and explain why it ultimately failed to persuade the Administrative Law Judge, citing the Respondent’s counterarguments regarding maintenance and responsibility.
4. Discuss the role of the governing community documents (the CC&Rs and Design Guidelines) in this dispute. Explain how specific articles, such as CC&R Article 12.3 and Design Guideline Section HH, were applied to the facts of the case to reach a final decision.
5. Define “preponderance of the evidence” as described in the legal decision. Detail the evidence presented by both the Petitioner and the Respondent at the rehearing and evaluate why the Judge concluded that the Petitioner failed to meet this evidentiary standard.
Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
The presiding judge (Antara Nath Rivera) at the Office of Administrative Hearings who heard the evidence and issued the final decision.
Answer
The formal written response filed by the Respondent on August 9, 2019, denying all complaint items in the Petition.
Areas of Association Responsibility
Areas that the Homeowners Association is responsible for maintaining, as defined in the CC&Rs. This includes the exterior side of boundary walls and a five-foot easement.
An acronym for the Declaration of Covenants, Conditions, Restrictions and Easements for Cimarron Hills, a primary governing document for the community.
Design Guidelines
A document titled Cimarron Hills Design Guidelines For Community Living that supplements the CC&Rs and provides specific rules on community aesthetics, including fences.
Design Review Committee (DRC)
A committee within the HOA responsible for reviewing and approving or denying residents’ proposed architectural and landscape modifications.
Homeowners Association Dispute Process Petition
The formal document filed by Will Schreiber with the Arizona Department of Real Estate on July 2, 2019, to initiate the legal dispute.
McDowell Mountain Ranch Homeowners Association (MMRHA)
The master association of which the Cimarron Hills HOA is a subdivision. The MMRHA also considered and denied the Petitioner’s request.
Petitioner
The party who filed the petition initiating the legal action; in this case, the homeowner, Will Schreiber.
Preponderance of the evidence
The standard of proof required in the hearing. It is defined as evidence that is more convincing and has superior weight, inclining an impartial mind to one side of the issue rather than the other.
Respondent
The party against whom the petition was filed; in this case, the Cimarron Hills at McDowell Mountain Homeowners Association.
Retroactive Approval
Approval sought for a modification or construction that has already been completed without prior authorization.
Variance
A formal exception to the standard Design Guidelines that the DRC may grant on a case-by-case basis.
Blog Post – 20F-H2019003-REL-RHG
The Glass Fence Standoff: 4 Critical Lessons from a Homeowner’s Losing Battle with His HOA
Introduction: The Dream Project and the Unseen Rules
Will Schreiber had a vision for his Scottsdale, Arizona home: a sleek, modern property with an uninterrupted backyard view. To preserve that stunning vista, he installed an elegant glass fence—a choice that seemed perfect for the landscape. His neighbors didn’t complain; in fact, there’s no evidence the fence bothered anyone. But his Homeowners Association (HOA) denied the project, triggering a legal dispute that went before an administrative law judge. Mr. Schreiber ultimately lost.
The conflict wasn’t driven by neighborhood animosity, but by the impersonal application of community documents. This case offers a masterclass in the often counter-intuitive world of HOA governance. The reasons he lost reveal surprising and invaluable lessons for any homeowner considering a modification to their property.
1. The most critical mistake wasn’t the fence—it was the timing.
The core reason the homeowner lost his case had less to do with the aesthetics of glass versus wrought iron and everything to do with procedural failure. He installed the fence before getting formal approval from the HOA.
The timeline of events was fatal to his argument. In November 2017, the HOA approved Mr. Schreiber’s plan for backyard improvements, but this plan made no mention of fencing. At some point after, he installed the unapproved glass fence. It wasn’t until a routine violation tour in January 2019 that the HOA discovered the new fence. Only after being caught, on January 24, 2019, did the homeowner submit a request for retroactive approval.
In the end, the judge’s decision hinged on this sequence. The key question wasn’t whether a glass fence was a good idea, but whether the HOA’s denial was reasonable “because Petitioner failed to abide by the regulations to get approval for the glass fence prior to installing it.” In any dispute with an HOA, following the established process is paramount. Once you break the rules of that process, the merits of your project often become irrelevant.
2. A logical argument can lose to a written rule.
The homeowner presented a seemingly logical and compelling argument. He contended that his neighbor didn’t have a fence at all, and a glass fence was conceptually the same thing. In his words:
A glass fence was “just as invisible” as not having a fence. In essence, both were the same concept.
To add weight to his point, he made a powerful real-world comparison, arguing the safety glass he used was similar to that of the railing of the Grand Canyon Skywalk tourist attraction.
This “common sense” approach, however, failed to persuade the judge. The HOA’s decision wasn’t based on a subjective interpretation of “invisibility” or a comparison to national landmarks. It was based on the binding community documents. The Design Guidelines were written to promote uniformity and consistency. According to the HOA, the established rules were clear: a homeowner could have a wrought iron fence or no fence at all. A glass fence was not an approved option. The lesson here is stark: the governing documents create the binding reality for every member of the community. A personal, logical argument is not a valid defense against a clearly written rule you have contractually agreed to follow.
3. The HOA’s biggest concern wasn’t curb appeal; it was risk.
While the dispute appeared to be about aesthetics, the HOA’s defense focused on much more practical and significant concerns: consistency, maintenance, and liability. These arguments reveal the often-unseen function of an HOA, which is to manage shared risk for the entire community.
The HOA presented several key points:
• Consistency: Out of 3,800 homes in the master community and 656 in the sub-community, not a single one had a glass fence. Approving this one would set a precedent that could undermine the community’s uniform design.
• Maintenance: The community’s CC&Rs (Article 12.3) explicitly stated the Association was responsible for maintaining “the side of the Boundary Wall which faces the Area of Association Responsibility.” This meant the HOA would be financially and logistically on the hook for repairing and maintaining an unfamiliar and potentially costly material.
• Safety & Liability: The HOA raised a critical safety issue. If the glass fence were to break, “large amount of glass shards would fall onto an area of Respondent’s responsibility, causing additional liability for Respondent.”
Sensing the maintenance issue was a key obstacle, Mr. Schreiber made a reasonable offer: he was willing to waive the HOA’s responsibility to maintain the glass fence. However, this proactive solution came too late. Because he had already violated the approval process, his concession was not enough to overcome the HOA’s other concerns about precedent and liability, which remained firmly grounded in the community’s governing documents.
4. In a dispute, you are the one who has to prove the HOA is wrong.
When a homeowner takes their HOA to court, the legal scales are not perfectly balanced from the start. The legal decision in this case clearly states the principle: “Petitioner bears the burden of proof to establish that Respondent violated Article 12.3 of its CC&Rs.”
In simple terms, “burden of proof” meant it was Mr. Schreiber’s job to convince the judge with a “preponderance of the evidence”—meaning it was more likely true than not—that the HOA had broken its own rules when it denied his request. It was not the HOA’s job to prove it was right; it was his job to prove they were wrong.
The judge ultimately found that the homeowner “failed to establish by a preponderance of the evidence that he rightfully sought approval.” The conclusion was that the “Respondent was reasonable in its denial.” It is not enough to feel you have been wronged; in a legal setting, you must be able to demonstrate with convincing evidence that the organization violated its own governing documents.
Conclusion: The Unwritten Lessons of Community Living
HOA rules can be a source of frustration, but this case demonstrates that they form a complex web of process, liability, and shared responsibility that exists for reasons beyond simple aesthetics. The homeowner’s dream of a glass fence was shattered not by a neighbor’s complaint, but by a series of procedural missteps and a misunderstanding of the contract he was bound by.
This case wasn’t just about a fence; it was about the power of a contract you agree to when you buy a home. How well do you really know your own community’s rulebook?
Case Participants
Petitioner Side
Will Schreiber(petitioner) Complainant
Aaron M. Green(petitioner attorney) Law Office of Aaron Green, P.C.
Respondent Side
Nick Nogami(respondent attorney) Represented Respondent at hearing
Mark K. Sahl(respondent attorney) CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Whitney Bostic(witness) Testified for Respondent
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate
Other Participants
c. serrano(clerk) Transmitting agent for Order
LDettorre(ADRE staff) Arizona Department of Real Estate Recipient of transmission
AHansen(ADRE staff) Arizona Department of Real Estate Recipient of transmission
djones(ADRE staff) Arizona Department of Real Estate Recipient of transmission
DGardner(ADRE staff) Arizona Department of Real Estate Recipient of transmission
ncano(ADRE staff) Arizona Department of Real Estate Recipient of transmission
The Administrative Law Judge ruled in favor of the Petitioner, finding that the Respondent violated state statute and community bylaws by failing to allow inspection of books and records. The Respondent was ordered to provide the records and refund the filing fee.
Key Issues & Findings
Failure to make books and records reasonably available
Petitioner requested access to the Association's books and records multiple times between 2017 and 2019 to review financial information and other member dues status. The Respondent failed to respond or provide access to the records.
Orders: Respondent shall supply Petitioner with the relevant documents within ten (10) days; Respondent shall pay Petitioner his filing fee of $500.00 within thirty (30) days.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
Cited:
A.R.S. § 33-1805
Bylaws Article X
Decision Documents
20F-H2019022-REL Decision – 773049.pdf
Uploaded 2026-02-11T06:43:22 (90.9 KB)
**Case Summary: Kenneth W. Zablotny vs. Sycamore Hills Estates, Inc.**
**Case Number:** 20F-H2019022-REL
**Hearing Date:** February 13, 2020
**Administrative Law Judge:** Antara Nath Rivera
**Proceedings**
The hearing was convened by the Arizona Department of Real Estate to address a dispute between Petitioner Kenneth W. Zablotny and Respondent Sycamore Hills Estates, Inc. The Petitioner appeared on his own behalf. The Respondent failed to appear, despite receiving proper notice, and the hearing proceeded in their absence.
**Key Facts**
The Petitioner, a homeowner in the community since 2012, sought access to the Association's books and records following discrepancies regarding homeowner dues and foreclosure statuses.
* **Repeated Requests:** Between December 2017 and December 2019, the Petitioner made numerous requests (via certified mail, website, and in-person attempts) to inspect financial records.
* **Respondent's Failure to Comply:** The Respondent’s manager and board consistently ignored requests, refused access, or provided incomplete and illegible documents. The Petitioner testified that he was refused access to books involving multiple accounts.
**Legal Issues**
The primary legal issue was whether the Respondent’s actions violated state law and community bylaws regarding member access to records.
* **A.R.S. § 33-1805:** This statute mandates that association financial records be made "reasonably available for examination" by any member. It grants associations ten business days to fulfill examination requests.
* **Bylaws Article X:** The community's bylaws state that books and records shall be subject to inspection by any member "at all times, during reasonable business hours".
**Findings and Conclusions**
The Administrative Law Judge found that the Department had jurisdiction over the dispute pursuant to A.R.S. § 41-2198.01(B). The Judge concluded that the Petitioner met the burden of proof by a preponderance of the evidence.
* **Violation Established:** The evidence demonstrated that the Respondent failed to provide dates and times for inspection and did not grant access to the records despite the Petitioner's repeated attempts, constituting a violation of both A.R.S. § 33-1805 and Article X of the Bylaws.
**Final Order**
The Judge ordered the following relief:
1. **Petition Upheld:** The Petitioner was deemed the prevailing party.
2. **Production of Records:** The Respondent was ordered to supply the relevant documents to the Petitioner within 10 days of the Order.
3. **Reimbursement:** The Respondent was ordered to pay the Petitioner the $500.00 filing fee within 30 days.
4. **Civil Penalty:** No civil penalty was assessed.
Case Participants
Petitioner Side
Kenneth W Zablotny(petitioner) Appeared on his own behalf; real estate agent
Respondent Side
Char DuFresne(property manager) Sycamore Hills Estates, Inc. Respondent's manager
Neutral Parties
Antara Nath Rivera(ALJ) Office of Administrative Hearings
Judy Lowe(Commissioner) Arizona Department of Real Estate Recipient of transmitted order
