Tag Archives: JC

Samuel T Paparazzo v. Coronado Ranch Community Association

Posted on by

Case Summary

Case ID 20F-H2020061-REL
Agency ADRE
Tribunal OAH
Decision Date 2020-09-03
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.
Filing Fees Refunded $2,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Samuel T Paparazzo Counsel —
Respondent Coronado Ranch Community Association Counsel Mark Stahl, Esq.

Alleged Violations

ARIZ. REV. STAT. §§ 33-1804(A), 33-1804(B), 33-1804(F), and Association bylaws 2.3, 2.7, and 3.1

Outcome Summary

The Administrative Law Judge concluded that the Respondent HOA acted within the scope of its statutory authority during its April 02, 2020, annual meeting and elections, and denied the Petitioner's petition for failure to sustain the burden of proof regarding alleged statutory and bylaw violations.

Why this result: The ALJ found that notice of the meeting modification (to an online platform due to COVID-19) was timely and proper, and Petitioner's claimed denial of the right to speak was the result of user error of the online platform, not action by the Association. Furthermore, the decision to hold elections for all five open Board positions was deemed appropriate due to carryover vacancies resulting from a lack of quorum in the prior year (2019).

Key Issues & Findings

Alleged violations regarding Annual Meeting notice (change in venue), right to speak, proper call to order, and staggered board voting.

Petitioner filed a quadruple-issue petition alleging the Association violated statutes and bylaws concerning the April 02, 2020, annual meeting, specifically regarding insufficient notice for the venue change (due to COVID-19), denial of the right to speak (via online chat), improper chair delegation, and failure to stagger Board elections.

Orders: Petitioner’s petition is denied.

Filing fee: $2,000.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 33-1804(F)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. ADMIN. CODE R4-9-117
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: COVID-19, Virtual Meeting, Notice, Right to Speak, Elections, Bylaws, Quorum, User Error
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(A)
  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 33-1804(F)
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. ADMIN. CODE R4-9-117

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

20F-H2020061-REL Decision – 819907.pdf

Uploaded 2026-04-24T11:27:49 (149.3 KB)

20F-H2020061-REL Decision – 819907.pdf

Uploaded 2026-01-23T17:33:45 (149.3 KB)

Briefing Document: Paparazzo v. Coronado Ranch Community Association (Case No. 20F-H2020061-REL)

Executive Summary

This document synthesizes the findings from the Administrative Law Judge Decision in the matter of Samuel T. Paparazzo versus the Coronado Ranch Community Association. The central conclusion of the proceeding is the denial of the Petitioner’s claims. The Administrative Law Judge (ALJ) determined that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Arizona state statutes or its own governing bylaws in the conduct of its April 2, 2020, annual meeting.

The critical takeaways from the decision are as follows:

• Meeting Format and Notice: The Association’s decision to move its annual meeting to a virtual platform (ClickMeeting) was deemed a lawful and appropriate response to the COVID-19 pandemic and the Arizona Governor’s related executive orders. The notification methods, which included physical signs and multiple emails, were found to be sufficient.

• Right to Speak: The Petitioner’s claim that he was denied the right to speak because he was “blocked” from the online chat feature was dismissed. The ALJ concluded the issue stemmed from “user error”—the Petitioner typed messages but failed to transmit them by pressing ‘enter’ or ‘send’. The fact that 26 other members successfully used the chat feature demonstrated its functionality.

• Meeting Conduct: The Association’s president properly called the meeting to order before delegating chairing responsibilities to the Association’s Managing Agent, an action the Petitioner conceded was within the president’s authority.

• Board Elections: The election of all five Board of Director positions simultaneously, rather than in staggered terms, was justified by unique circumstances. The Association’s 2019 annual meeting failed to achieve a quorum, preventing an election and resulting in a “carryover of open seats,” which necessitated filling all positions in the 2020 election.

Ultimately, the ALJ found that the Association and its Board acted within the scope of their statutory authority and that the challenges raised by the Petitioner were without merit.

I. Case Overview

This briefing analyzes the Administrative Law Judge Decision issued on September 3, 2020, following an evidentiary hearing held on August 18, 2020.

• Case Number: 20F-H2020061-REL

• Presiding Judge: Administrative Law Judge Jenna Clark

• Petitioner: Samuel T. Paparazzo (Homeowner and Association Member)

• Respondent: Coronado Ranch Community Association (HOA)

• Central Issue: The core of the dispute was whether the Coronado Ranch Community Association violated Arizona Revised Statutes and specific sections of its own bylaws during its annual meeting on April 2, 2020.

II. Petitioner’s Allegations

On May 15, 2020, Samuel Paparazzo filed a quadruple-issue petition alleging that the Association committed the following violations:

1. Improper Notice of Meeting: Providing less than 10-days’ notice regarding a “change in venue” for the annual meeting to only a small portion of the membership, in violation of ARIZ. REV. STAT. § 33-1804(B) and Association Bylaw 2.3.

2. Denial of Right to Speak: Preventing the Petitioner from exercising his right to speak by “blocking” or otherwise disabling his use of the online “chat feature” during the virtual meeting, in violation of ARIZ. REV. STAT. § 33-1804(A).

3. Improper Meeting Conduct: Failing to properly call the annual meeting to order, in violation of Association Bylaw 2.7.

4. Improper Board Election: Conducting the Board of Directors election without the “staggered” terms required by the bylaws, in violation of Association Bylaw 3.1.

III. Factual Chronology and Key Evidence

The decision outlines a clear sequence of events, heavily influenced by the onset of the COVID-19 pandemic.

Feb. 20, 2020

The Association issues its initial notice for the annual meeting, scheduled for April 2, 2020, at Coronado Elementary School.

Mar. 12, 2020

The Association mails election ballots to all Members.

Mar. 19, 2020

Arizona Governor Douglas Ducey issues Executive Order 2020-09, limiting certain business operations to slow the spread of COVID-19.

~Mar. 25, 2020

The Association’s President, Bob Hicks, officially moves the meeting to the virtual ClickMeeting platform.

Mar. 25 – Apr. 1

The Association notifies Members of the change via 12 signs at 6 community entrances and three separate email blasts to approximately 750 Members, which had an average open rate of 63.53%.

Mar. 30, 2020

Governor Ducey issues Executive Order 2020-18, the “Stay Home, Stay Healthy, Stay Connected” order.

Apr. 1, 2020

Two signs are placed at the entrance to the original meeting location, Coronado Elementary School, informing of the change.

Apr. 2, 2020

The Annual Meeting is held via ClickMeeting.
• President Hicks calls the meeting to order and then appoints Managing Agent Kevin Bishop to chair the remainder of the meeting.
• A quorum is achieved based on attendees and absentee ballots.
• An election is held for all 5 open Board positions due to a lack of quorum at the 2019 meeting.
• The Petitioner types messages in the chat window but fails to hit “enter” or click “send” to transmit them. He receives no response to an email for help sent during the meeting.
• At least 26 other Members successfully use the chat feature.

IV. Analysis of Key Issues and Legal Conclusions

The Administrative Law Judge systematically addressed and dismissed each of the Petitioner’s four allegations, concluding that the Board acted lawfully and within its authority.

A. Meeting Notice and Venue Change

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(B) and Bylaw 2.3 (Notice of Meetings).

• Finding: The petition was denied on this point. The ALJ concluded that the notice of the Association’s 2020 annual meeting was “timely and properly noticed.” The move to an online platform was not an arbitrary venue change but a necessary and reasonable measure to comply with the Governor’s executive orders related to the COVID-19 pandemic.

• Supporting Evidence:

◦ The Association made a multi-faceted effort to inform Members through physical signs and repeated emails.

◦ The Petitioner received notice of the modification and, crucially, “failed to raise an objection prior to or during the meeting at issue.”

◦ A Member’s attendance at a meeting waives objections to defective notice, as stated in Bylaw 2.3.

B. Right to Speak

• Alleged Violation: ARIZ. REV. STAT. § 33-1804(A) (Open Meetings and Member Participation).

• Finding: The petition was denied on this point. The ALJ determined the Petitioner’s inability to communicate during the meeting was the result of “user error” and not a deliberate act by the Association to silence him.

• Supporting Evidence:

◦ The Petitioner wrote messages but never finalized the action by hitting the “enter” key or clicking the “send” button.

◦ The chat feature was demonstrably functional, as it was “successfully used by no less than 26 other Members during the annual meeting.”

◦ The decision explicitly states, “The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.”

C. Conduct of Meeting

• Alleged Violation: Bylaw 2.7 (Organization and Conduct of Meeting).

• Finding: The petition was denied on this point. The meeting was lawfully conducted.

• Supporting Evidence:

◦ The Association President, Bob Hicks, called the meeting to order and took roll before appointing Managing Agent Kevin Bishop to chair the rest of the meeting.

◦ The Petitioner “conceded during cross-examination that President Hicks had the authority task Agent Bishop with chairing the annual meeting.”

D. Board of Directors Election

• Alleged Violation: Bylaw 3.1 (Number and Terms of Office).

• Finding: The petition was denied on this point. The election for all five Board seats was deemed “lawful and appropriate given the circumstances.”

• Supporting Evidence:

◦ The bylaw’s provision for staggered terms could not be implemented because the 2019 annual meeting lacked a quorum, which meant no election took place that year.

◦ This lack of a 2019 vote “resulted in a carryover of open seats,” necessitating a vote for all five Board positions in 2020.

◦ The Petitioner “admitted that it had not been possible for the Association to stagger Board electees in the 2020 vote because no quorum had been reached to vote in 2019.”

V. Final Order and Disposition

Based on the findings of fact and conclusions of law, the Administrative Law Judge issued a final order.

• Order: “IT IS ORDERED that Petitioner’s petition be denied.”

• Legal Standard: The Petitioner bore the burden of proving his case by a “preponderance of the evidence.” The ALJ concluded that the record did not establish any violations and that the Petitioner “failed to sustain his burden of proof in this matter.”

• Date of Order: The decision was issued on September 3, 2020.

Study Guide: Paparazzo v. Coronado Ranch Community Association

This guide is designed to review the key facts, legal arguments, and conclusions presented in the Administrative Law Judge Decision for case number 20F-H2020061-REL, Samuel T Paparazzo v. Coronado Ranch Community Association.

Short-Answer Quiz

Answer the following questions in 2-3 sentences, based on the information provided in the case document.

1. Who were the primary parties in this case, and what were their roles?

2. What were the four specific allegations the Petitioner made against the Association regarding its Annual Meeting?

3. How did the Association notify its members of the change from an in-person meeting to a virtual one?

4. What was the legal justification for the Association’s decision to move the Annual Meeting to an online platform?

5. What evidence was presented to counter the Petitioner’s claim that he was “blocked” from using the online chat feature?

6. According to the Association’s bylaws, who has the authority to chair the annual meeting and delegate that responsibility?

7. Why did the 2020 Board of Directors election involve voting for all five open positions instead of being staggered?

8. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this hearing?

9. What two key Arizona Revised Statutes (ARIZ. REV. STAT.) relate to member meeting notices and the right to speak?

10. What was the final order issued by the Administrative Law Judge, and what was the core reasoning behind it?

——————————————————————————–

Answer Key

1. The primary parties were Samuel T. Paparazzo, the Petitioner, who is a property owner and member of the Association, and the Coronado Ranch Community Association, the Respondent, which is the homeowners’ association for the subdivision. The Petitioner brought the complaint, and the Respondent defended its actions.

2. The Petitioner alleged that: (i) inadequate notice of the “change in venue” was given; (ii) he was denied his right to speak by being blocked from the online chat feature; (iii) the meeting was not properly called to order; and (iv) the Board of Directors vote was not properly “staggered.”

3. The Association notified members of the move to the ClickMeeting platform by placing 12 signs at 6 common entrances, sending three separate emails to approximately 750 members, and placing 2 signs at the entrance of the originally scheduled location, Coronado Elementary School.

4. The legal justification was the need to comply with executive orders issued by Arizona Governor Douglas Ducey (2020-09, 2020-12, and 2020-18) to slow the spread of COVID-19. The online platform was adopted to allow homeowners to safely access the meeting while adhering to physical distancing mandates.

5. The evidence showed that the Petitioner wrote messages but never hit the “enter” key or “send” button to transmit them. Furthermore, the record indicates that no less than 26 other members successfully used the chat feature during the meeting.

6. According to Bylaw Section 2.7, the President of the Association, Bob Hicks, has the authority to call the meeting to order and chair it. The Petitioner conceded during cross-examination that President Hicks had the authority to delegate the chairing of the meeting to the Association’s Managing Agent, Kevin Bishop.

7. The election involved all five positions because a quorum had not been achieved at the Association’s 2019 annual meeting. This lack of a quorum prevented a vote from taking place, resulting in a carryover of all open board seats to the 2020 election.

8. A “preponderance of the evidence” is the standard of proof required, meaning the evidence must be more probably true than not. In this proceeding, the Petitioner, Samuel Paparazzo, bore the burden of proving his allegations by this standard.

9. ARIZ. REV. STAT. § 33-1804(B) requires notice to be sent not fewer than 10 nor more than 50 days in advance of a meeting. ARIZ. REV. STAT. § 33-1804(A) ensures that all meetings are open to members and that members are permitted to attend and speak at an appropriate time.

10. The final order was that the Petitioner’s petition be denied. The judge reasoned that the Petitioner failed to sustain his burden of proof, as the evidence showed the Association’s actions were lawful and appropriate responses to the circumstances, and the Petitioner’s inability to participate was due to user error.

——————————————————————————–

Essay Questions

The following questions are designed for deeper analysis of the case. No answers are provided.

1. Analyze the role of the COVID-19 pandemic and the associated executive orders in the events of this case. How did these external factors influence the Association’s actions and the Administrative Law Judge’s final decision?

2. The judge concluded that the Petitioner’s inability to use the chat function was due to “user error.” Discuss the evidence that supports this conclusion and explore the legal line between an association’s responsibility to provide access and a member’s responsibility to utilize the provided tools correctly.

3. Explain the relationship between the Association’s governing documents (CC&Rs and Bylaws) and Arizona state law (ARIZ. REV. STAT.). How did the judge use both to evaluate the legality of the Association’s handling of the annual meeting and election?

4. The Petitioner argued that the online platform constituted a “change in venue” that required more extensive notice. Based on the judge’s decision, evaluate the legal merits of this argument in the context of a virtual meeting necessitated by a public health crisis.

5. Discuss the concept of “quorum” as it applied to both the 2019 and 2020 annual meetings. How did the failure to achieve quorum in one year directly impact the procedures and outcome of the election in the following year?

——————————————————————————–

Glossary of Key Terms

Definition from Context

Administrative Law Judge (ALJ)

An independent judicial officer (Jenna Clark in this case) from the Office of Administrative Hearings who conducts evidentiary hearings and issues decisions on matters referred by state agencies like the Department of Real Estate.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, the collection of laws for the state of Arizona. Title 33, Chapter 16, Article 1 specifically regulates planned communities (homeowners’ associations).

Association

The Coronado Ranch Community Association, the homeowners’ association for the residential development in Gilbert, Arizona. It is governed by its CC&Rs and overseen by a Board of Directors.

Bylaws

The governing documents of the Association that detail the structure of day-to-day governance, including voting processes, quorum requirements, meeting provisions, and other operating guidelines.

Covenants, Conditions, and Restrictions. These form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use within the development.

Declarant Control Period

An initial period in an association’s history where the developer (the “Declarant”) controls the Board of Directors. In this case, this period ended for the Association in 2005.

Department

The Arizona Department of Real Estate, the state agency authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.

The Office of Administrative Hearings, an independent state agency that was referred this matter to conduct an evidentiary hearing and decide the case.

Petitioner

Samuel T. Paparazzo, the property owner and Association member who filed the petition with the Department, alleging violations by the Association.

Preponderance of the Evidence

The burden of proof required in this hearing. It is defined as proof that convinces the trier of fact that a contention is “more probably true than not,” representing the greater weight of evidence.

Quorum

The minimum number of members required to be present or represented by ballot for a meeting to be valid and for votes to be taken. The failure to achieve quorum at the 2019 meeting resulted in a carryover of open board seats.

Respondent

The Coronado Ranch Community Association, the party against whom the petition was filed. The Respondent denied all allegations and was represented by legal counsel.

He Sued His HOA Over a Virtual Meeting—The Judge’s Ruling Contains 4 Critical Lessons for Every Homeowner

Introduction: The New Battlefield for Neighborhood Disputes

Cast your mind back to the chaotic spring of 2020. The world was locking down, businesses were scrambling to go remote, and the delicate social contracts of our neighborhoods were fraying. For millions living in Homeowners’ Associations, this meant the abrupt cancellation of in-person meetings, replaced by a frantic pivot to unfamiliar virtual platforms. In this pressure cooker of uncertainty and technical glitches, minor grievances quickly escalated into major legal battles.

The case of Paparazzo vs. Coronado Ranch Community Association is a quintessential legal drama of that era. A frustrated homeowner, believing he was silenced and his rights ignored during a virtual meeting, took his HOA to court. The judge’s decision, however, serves as a powerful cautionary tale. It distills four surprising and impactful lessons that every homeowner should understand as community governance becomes increasingly digital.

1. The Takeaway: You Can’t Claim You Were Silenced If You Forgot to Hit ‘Send’

The petitioner, Samuel Paparazzo, leveled a serious charge: that the HOA had denied his right to speak by “blocking” him from using the online chat feature during the annual meeting. In his view, this was an intentional act of suppression.

The digital evidence, however, told a very different story. While Mr. Paparazzo had typed several messages, he had never actually transmitted them by hitting the “enter” key or clicking the “send” button. While he did email for assistance during the meeting without receiving a timely response, the court found the chat feature was fully functional, proven by the fact that at least 26 other members used it successfully. The judge’s ruling was a stark lesson in digital accountability:

Petitioner’s inability to effectively communicate with the Association during the annual meeting was the result of user error. … The Association is not responsible for Petitioner’s lack of ClickMeeting proficiency.

This establishes a critical precedent for our digital age. The analysis here goes beyond simple “user error.” It suggests that a baseline of digital literacy is becoming a prerequisite for effective civic participation. Courts may have little sympathy for claims of disenfranchisement that stem from a failure to master the basic tools of modern communication.

2. The Takeaway: An Emergency Can Justify Last-Minute Changes

Next, the petitioner challenged the HOA on procedural grounds—a classic move in community disputes. He argued that the association failed to provide proper notice for the virtual meeting. The HOA had correctly noticed its in-person meeting for April 2, 2020, back on February 20. But by late March, holding that meeting had become impossible.

The judge’s response to this claim is a masterclass in how legal “reasonableness” can override rigid bylaws during a crisis. The court noted the rapidly evolving timeline of the pandemic: Governor Ducey issued executive orders limiting business operations on March 19, prohibiting the closure of essential services on March 23, and issuing the “Stay Home” order on March 30. Faced with these superseding government mandates, the HOA moved the meeting online on March 25.

Crucially, the HOA’s communication efforts were extensive and documented. They didn’t just send a single email. The board notified its members by:

• Placing 12 signs at 6 common entrances to the community.

• Sending three separate email blasts to approximately 750 members, which had an average open rate of 63.53%.

• Placing 2 additional signs at the entrance to the originally scheduled location, Coronado Elementary School.

The judge concluded that the HOA’s actions were a justifiable response to an unprecedented emergency. This wasn’t a board ignoring its rules; it was a board taking necessary steps to comply with government orders and protect its members, legally justifying the short-notice change in format.

3. The Takeaway: Just Showing Up Can Waive Your Right to Complain

This lesson hinges on a legal concept every homeowner must understand: waiver by attendance. Buried in the association’s bylaws was Section 2.3, which states: “A Member’s attendance at a meeting waives objection to the lack of notice or defective notice of the meeting.”

This is not mere legalese; it’s a common and powerful clause designed to ensure the finality of meetings. It prevents a member from strategically attending a meeting, remaining silent about a potential procedural flaw, and then launching a lawsuit later if they don’t like the outcome. The judge noted that the petitioner attended the virtual meeting but did not object to the notice “prior to or during” the event. By participating without raising a formal objection at the time, he legally accepted the meeting’s procedures and waived his right to challenge them later.

4. The Takeaway: The Past Can Haunt the Present

The petitioner’s final major complaint appeared to be a slam dunk: the election for the Board of Directors was not “staggered” as explicitly required by Bylaws Section 3.1. Instead of a mix of one- and two-year terms to ensure continuity, all five open board positions were elected at once. On its face, this was a clear violation.

But the reason for this anomaly demonstrates the domino effect of governance. The judge found that in the previous year, 2019, the association had failed to achieve a quorum for its annual meeting. Because there was no quorum, no vote could occur, creating a “carryover of open seats.” This failure in 2019 created a governance debt that had to be paid in 2020. The only lawful way to do so was to elect members to all five vacant positions. This shows that an HOA is a continuous legal entity; one year’s procedural failure doesn’t just disappear—it creates unusual but legally necessary circumstances the next.

Conclusion: A Final Thought for the Digital Neighborhood

The case of Paparazzo vs. Coronado Ranch Community Association offers a clear and compelling look at the collision between established community rules, the new realities of digital life, and the chaos of unforeseen global events. It shows that while bylaws and statutes provide a framework, their application can be shaped by emergencies, past events, and even a single user’s technical skills.

As our communities increasingly operate online, who bears the greater responsibility for ensuring effective communication—the organization hosting the meeting, or the individual attending it?

Case Participants

Petitioner Side

  • Samuel Paparazzo (petitioner)
    Also referred to as Samuel T Paparazzo

Respondent Side

  • Mark Stahl (HOA attorney)
    Coronado Ranch Community Association
    Also spelled Mark Sahl in source
  • Timothy Butterfield (HOA attorney)
    Coronado Ranch Community Association
  • Kevin Bishop (community manager)
    Coronado Ranch Community Association
    Appeared as a witness for Respondent; Also referred to as 'Agent Bishop' and chaired part of the annual meeting
  • Bob Hicks (HOA Board President)
    Coronado Ranch Community Association
    Delegated chairing of the annual meeting

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

Posted on by

Case Summary

Case ID 20F-H2020049-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-03-08
Administrative Law Judge Jenna Clark
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael J Stoltenberg Counsel —
Respondent Rancho Del Oro Homeowners Association Counsel Nicole Payne, Esq.

Alleged Violations

CC&Rs Section 14.8

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the Association did not violate CC&Rs Section 14.8. The provision was determined to be inapplicable, governing the Association’s obligation to provide notice, not the methods homeowners must use to send payments.

Why this result: Petitioner failed to meet the burden of proof. CC&Rs Section 14.8 was inapplicable, and Petitioner's chosen restricted delivery method for assessment payments caused delays, which were not the responsibility of the Respondent.

Key Issues & Findings

Whether the Association violated CC&Rs 14.8 concerning notice obligations.

Petitioner alleged the Association violated CC&Rs 14.8 by improperly handling or failing to receive his monthly assessment payments, which he sent via restricted delivery to a board member despite receiving instructions to mail payments to the Association's designated P.O. Box address.

Orders: Petitioner's petition was denied because he failed to sustain his burden of proof that the Association violated CC&Rs Section 14.8.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 33-1243
  • CC&Rs 14.8

Analytics Highlights

Topics: homeowner assessments, CC&Rs interpretation, restricted delivery, jurisdiction, notice provision, rehearing
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 10-3842
  • CC&Rs 14.8
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

20F-H2020049-REL Decision – 861466.pdf

Uploaded 2026-04-24T11:25:54 (145.6 KB)

20F-H2020049-REL Decision – 811290.pdf

Uploaded 2026-04-24T11:25:59 (131.7 KB)

Stoltenberg v. Rancho Del Oro HOA: Case Analysis and Legal Findings

Executive Summary

This document provides a comprehensive analysis of the administrative legal case Michael J Stoltenberg v. Rancho Del Oro Homeowners Association (Case No. 20F-H2020049-REL). The central dispute arose when Mr. Stoltenberg, a homeowner, was assessed late fees on his monthly dues after unilaterally altering his payment method. He began sending payments via restricted U.S. Postal Service delivery to a specific volunteer board member, which resulted in significant processing delays and non-deliveries.

The petitioner alleged the Association was acting in “bad faith” and violating Section 14.8 of its Covenants, Conditions, and Restrictions (CC&Rs). An Administrative Law Judge (ALJ) conclusively found that Section 14.8, which governs notices sent from the Association to its members, was entirely inapplicable to payments sent by a member to the Association. The ALJ determined that the petitioner’s own “volitionally took” actions were the direct cause of the payment delays and subsequent late fees.

The petitioner’s initial petition was denied. A subsequent request for rehearing was granted, but the rehearing affirmed the original decision. The ALJ reiterated that the cited CC&R section was inapplicable, noted a lack of jurisdiction over other statutes the petitioner raised, and concluded that the petitioner had failed to meet his burden of proof in either proceeding.

Case Background and Procedural History

Parties and Governing Documents

• Petitioner: Michael J. Stoltenberg, a condominium owner within the Rancho Del Oro development and a member of the homeowners’ association.

• Respondent: Rancho Del Oro Homeowners Association (“the Association”), a condominium association in Yuma, Arizona, governed by its CC&Rs and overseen by a Board of Directors.

• Governing Authority: The CC&Rs form an enforceable contract between the Association and each property owner. The specific provision at the center of the dispute is Section 14.8 of the Bylaws, titled “Notices.” This section has remained unamended since the original CC&Rs were recorded on August 30, 1985.

Initial Petition and Jurisdictional Scope

On March 2, 2020, Mr. Stoltenberg filed a petition with the Arizona Department of Real Estate, alleging the Association “fail to do their job, and are acting in bad faith.” The petition cited violations of Arizona Revised Statutes (ARIZ. REV. STAT.) §§ 10-3842 and 10-801, as well as Section 14.8 of the Association’s CC&Rs. Mr. Stoltenberg sought an order compelling the Association to comply with these regulations and the issuance of a civil penalty.

Upon filing, the Department advised the petitioner that the HOA Dispute Process lacks jurisdiction over disputes arising from Title 10 of the Arizona Revised Statutes. Consequently, the case was narrowed to a single issue, and the petitioner was assessed a $500 filing fee. The sole issue for the hearing was formally defined as: “Whether the Association violated CC&Rs 14.8.”

Chronology of Legal Proceedings

Outcome

March 2, 2020

Petition filed by Michael Stoltenberg.

The case is initiated.

July 14, 2020

Initial evidentiary hearing is held.

Both parties present arguments.

August 3, 2020

Amended ALJ Decision is issued.

The petitioner’s petition is denied.

August 28, 2020

Petitioner submits a rehearing request.

Grounds cited: errors of law and an arbitrary decision.

September 9, 2020

Rehearing request is granted.

A new hearing is scheduled.

February 16, 2021

Rehearing is held.

The same issue is re-examined.

March 8, 2021

Final ALJ Decision is issued.

The petitioner’s petition is denied again; the order is binding.

Factual Analysis of the Dispute

Payment Instructions and Petitioner’s Actions

On January 4, 2016, the petitioner was advised that the Association’s “primary address for receiving all correspondence and all assessment payments from its members” was PO Box 4333, Yuma, Arizona 85366. The correspondence explicitly stated, “Please send your payments to the above address.”

Despite these clear instructions, beginning in November 2019, the petitioner began sending his monthly assessment payments to this P.O. Box via restricted delivery through the United States Postal Service (USPS), designated for pickup by board member Rhea Carlisle only.

The petitioner’s stated rationale for this change was a belief that an agent of the Association’s property management company (PMC) had previously thrown away one of his mailed payments. However, the petitioner was aware of several key facts:

• The Association employed a PMC to pick up its mail.

• Ms. Carlisle was an unpaid volunteer board member, not an employee of the PMC.

• Diana Crites was the Association’s listed Statutory Agent for 2019 and 2020.

Consequences of Restricted Delivery

The petitioner’s unilateral decision to restrict delivery caused significant disruption to the receipt of his payments. This led to his assessments being recorded as untimely, which in turn resulted in the Association assessing late fees against his account. Additionally, each late payment occurrence placed his residence “in danger of foreclosure by the Association.”

A timeline of payment delivery issues presented as evidence includes:

Payment Period

USPS Action

December 2019

Picked up.

January 25, 2020

Returned to petitioner by USPS.

January 30, 2020

Picked up.

February 26, 2020

Picked up.

April 17, 2020

Picked up.

June 8, 2020

Returned to petitioner by USPS.

Legal Rulings and Core Arguments

Central Legal Text: CC&Rs Section 14.8 (“Notices”)

The entire case hinged on the interpretation of Section 14.8 of the Association’s Bylaws. The text reads:

“Any notice permitted or required by this Declaration or the Bylaws may be delivered either personally or by mail. If delivery is by mail, it shall be deemed to have been delivered seventy-two (72) hours after a copy of the same has been deposited in the United States mail, postage prepaid, addressed to each person at the current address given by such person to the secretary of the Board or addressed to the Unit of such person if no address has been given to the secretary.”

ALJ’s Interpretation: In both the initial decision and the rehearing decision, the ALJ found the language of Section 14.8 to be clear, “neither vague nor ambiguous,” and definitively inapplicable to the case. The ruling stated that the “language of Section 14.8 speaks specifically to the Association’s notice obligation to its members when mailing them information. Section 14.8 has no binding authority or control over homeowners sending mail to the Association.”

Arguments Presented

• He had always technically mailed his monthly payments on time to the correct P.O. Box.

• He filed the petition out of concern over incurring late fees and the potential loss of his home.

• During the rehearing, he argued that the initial decision failed to properly interpret Section 14.8 and should have also applied ARIZ. REV. STAT. § 10-3842 (concerning standards of conduct for nonprofit officers).

• Section 14.8 of the CC&Rs was entirely inapplicable to the facts presented, as it governs the Association’s outbound notice obligations, not a member’s inbound payments.

• The Department and the Office of Administrative Hearings lack jurisdiction under Title 10 of the ARIZ. REV. STAT.

• The petitioner failed to sustain the burden of proof required to show a violation.

Final Conclusions and Order

The Administrative Law Judge’s decisions in both the initial hearing and the rehearing were definitive. The core conclusions of law were as follows:

1. Burden of Proof: The petitioner bore the burden of proving by a preponderance of the evidence that the Association violated the CC&Rs and failed to meet this burden.

2. Inapplicability of CC&Rs Section 14.8: The provision cited by the petitioner was found to be wholly irrelevant to the matter of a homeowner mailing payments to the Association.

3. Assignment of Responsibility: The ALJ concluded that the petitioner’s own choices were the cause of the issue. The decision states, “By restricting the delivery of his monthly assessment payments, Petitioner inadvertently caused delay in their ability to be picked up by the Association.” There was “no credible evidence in the record to suggest that the action(s) Petitioner volitionally took are Respondent’s responsibility.”

4. Rehearing Findings: In the final decision, the ALJ noted that the petitioner “did not introduce any evidence tending to suggest that there was an ‘error in the admission or rejection of evidence or other errors of law…'” or that the prior decision was arbitrary or capricious.

Final Order: Based on the foregoing, the ALJ ordered that the petitioner’s petition be denied. The order issued on March 8, 2021, was binding on the parties, with any further appeal requiring judicial review in superior court within 35 days.

Study Guide: Stoltenberg v. Rancho Del Oro Homeowners Association

This guide provides a detailed review of the administrative case Michael J Stoltenberg v. Rancho Del Oro Homeowners Association, Case No. 20F-H2020049-REL, including the initial hearing and a subsequent rehearing. It is designed to test and deepen understanding of the facts, legal arguments, procedures, and outcomes presented in the official decisions.

Short-Answer Quiz

Instructions: Please answer the following questions in two to three complete sentences, drawing information exclusively from the provided legal documents.

1. Who were the primary parties in this legal dispute, and what was their relationship to one another?

2. What was the specific allegation Michael Stoltenberg made against the Rancho Del Oro Homeowners Association in his petition?

3. What specific action did the Petitioner take regarding his monthly assessment payments starting in November 2019?

4. According to the Association, why was Section 14.8 of the CC&Rs not applicable to the Petitioner’s complaint?

5. What were the negative consequences the Petitioner faced as a result of his payments being received late by the Association?

6. What was the legal standard of proof the Petitioner was required to meet, and did the judge find he had met it?

7. What were the two grounds upon which the Petitioner requested a rehearing after the initial decision?

8. Why was the Petitioner’s citation of Arizona Revised Statutes (ARIZ. REV. STAT.) § 10-3842 dismissed during the proceedings?

9. What was the final ruling in the Administrative Law Judge Decision issued on March 08, 2021, following the rehearing?

10. After the final order was issued, what was the Petitioner’s sole remaining avenue for appeal?

——————————————————————————–

Answer Key

1. The primary parties were Michael J Stoltenberg, the Petitioner, and the Rancho Del Oro Homeowners Association, the Respondent. Mr. Stoltenberg was a condominium owner and a member of the Association, which governed the residential development where he lived.

2. In his petition filed on March 2, 2020, Stoltenberg alleged the Association violated Section 14.8 of its CC&Rs and Arizona Revised Statutes §§ 10-3842 and 10-801. He specifically claimed the Association “fail to do their job, and are acting in bad faith.”

3. Beginning in November 2019, the Petitioner began sending his monthly assessment payments to the Association’s P.O. Box via restricted delivery from the United States Postal Service. He specified that the mail was for board member Rhea Carlisle’s pickup only, despite knowing she was a volunteer and not an employee of the property management company that handled mail.

4. The Association argued that Section 14.8 of the CC&Rs was inapplicable because it governs the Association’s notice obligations to its members. The judge agreed, stating the section has no binding authority over how homeowners send mail to the Association.

5. Each time the Petitioner’s monthly assessment was received late, he was assessed a late fee by the Association. Additionally, each late payment occurrence placed his residence in danger of foreclosure.

6. The Petitioner bore the burden of proving his case by a “preponderance of the evidence,” which means showing the contention is more probably true than not. The judge concluded in both decisions that the Petitioner failed to sustain this burden of proof.

7. The Petitioner requested a rehearing on the grounds that there was an alleged “Error in the admission or rejection of evidence or other errors of law occurring during the proceeding” and because “[t]he findings of fact or decision is arbitrary, capricious, or an abuse of discretion.”

8. The citation of ARIZ. REV. STAT. § 10-3842, which concerns standards of conduct for officers of nonprofit corporations, was dismissed because it falls outside the jurisdiction of the Arizona Department of Real Estate’s HOA Dispute Process. The Petitioner was advised of these jurisdictional limitations when he filed his petition.

9. The final ruling issued on March 8, 2021, denied the Petitioner’s petition once again. The judge affirmed the original findings, concluding there was no violation of Section 14.8 and that the Petitioner had not introduced any evidence to support his grounds for a rehearing.

10. After the final order resulting from the rehearing, the Petitioner’s only remaining recourse was to seek judicial review by filing an appeal with the superior court. This appeal had to be filed within thirty-five days from the date the order was served upon the parties.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth analysis. Formulate a comprehensive essay response for each prompt, using specific evidence and details from the source documents to support your arguments.

1. Analyze the legal reasoning of Administrative Law Judge Jenna Clark in her interpretation of Section 14.8 of the CC&Rs. Explain why this section was deemed inapplicable to the Petitioner’s situation and how this interpretation was central to the case’s outcome in both the hearing and rehearing.

2. Discuss the concept of “burden of proof” as it applied in this case. Explain who held the burden, what the “preponderance of the evidence” standard required, and why the Petitioner ultimately failed to meet this standard in the judgment of the court.

3. Trace the complete procedural history of this case, starting from the initial petition. Detail the key dates, filings (petition, answer, rehearing request), hearings, and decisions, explaining the significance of each step in the administrative legal process from March 2020 to March 2021.

4. Examine the actions of the Petitioner, Michael Stoltenberg, beginning in November 2019. Evaluate his rationale for unilaterally changing his payment method, the specific steps he took, and how his choices directly led to the late fees and risk of foreclosure he sought to avoid.

5. Explain the roles and jurisdictional limitations of the Arizona Department of Real Estate (the Department) and the Office of Administrative Hearings (OAH) in this dispute. Why were certain statutes cited by the Petitioner, such as those under Title 10 of the ARIZ. REV. STAT., dismissed by the court as being outside its purview?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, and issues decisions for state agencies.

Answer

The formal written response filed by the Respondent (the Association) on March 24, 2020, denying all items in the Petitioner’s complaint.

Arizona Department of Real Estate (Department)

The state agency authorized by statute to receive and decide petitions for hearings regarding disputes within homeowners’ associations in Arizona.

Arizona Revised Statutes (ARIZ. REV. STAT.)

The collection of laws enacted by the Arizona state legislature. Specific statutes were cited by the Petitioner and referenced by the court.

Association

The Rancho Del Oro Homeowners Association, a condominium association responsible for governing the real estate development and enforcing its CC&Rs.

Board of Directors (the Board)

The governing body that oversees the Homeowners Association.

Burden of Proof

The legal obligation of a party in a trial (in this case, the Petitioner) to produce evidence that proves the claims they have made against the other party.

An acronym for the Declaration of Covenants, Conditions and Restrictions. These are the governing legal documents that form an enforceable contract between the Association and each property owner.

Conclusions of Law

The section of the judge’s decision that applies legal principles and statutes to the established facts of the case to reach a final judgment.

Findings of Fact

The section of the judge’s decision that details the factual background, procedural history, and evidence presented during the hearing.

Hearing

A formal proceeding before an administrative law judge where parties present evidence and arguments. In this case, hearings were held on July 14, 2020, and February 16, 2021.

Jurisdiction

The official power to make legal decisions and judgments. The Department’s jurisdiction was limited and did not extend to disputes arising from Title 10 of the Arizona Revised Statutes.

Office of Administrative Hearings (OAH)

An independent state agency that provides administrative law judges to conduct hearings for other state agencies, ensuring impartiality.

The final, binding command issued by the judge at the conclusion of the decision. In this case, the order was to deny the Petitioner’s petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Michael J Stoltenberg.

Petition

The formal legal document filed by the Petitioner on March 2, 2020, to initiate the hearing process with the Department.

Preponderance of the Evidence

The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Rehearing

A second hearing granted to a party to re-examine the issues of a case, typically requested on grounds of legal error or an unjust decision. The Petitioner’s request for a rehearing was granted.

Respondent

The party against whom a petition is filed. In this case, the Rancho Del Oro Homeowners Association.

Restricted Delivery

A service offered by the United States Postal Service (USPS) that ensures mail is delivered only to a specific addressee or their authorized agent.

Statutory Agent

An individual or entity designated to receive legal notices and service of process on behalf of a corporation or association. For the Association, this was Diana Crites.

Select all sources
811290.pdf
861466.pdf

No emoji found

Loading

20F-H2020049-REL-RHG

2 sources

These documents contain the Administrative Law Judge Decisions stemming from a dispute between a homeowner, Michael J. Stoltenberg, and the Rancho Del Oro Homeowners Association regarding the timely delivery of monthly assessment payments. The initial decision in August 2020 denied the homeowner’s petition, finding that the Association did not violate Section 14.8 of the Covenants, Conditions and Restrictions (CC&Rs), as that provision governs the Association’s notice obligation to members, not homeowners’ mail to the Association. Following a granted request for rehearing due to alleged errors of law, the subsequent March 2021 decision affirmed the original ruling, concluding that the homeowner’s self-imposed restriction on mail delivery caused the delays and that the relevant CC&R section was inapplicable to the petitioner’s complaint. Both decisions noted that the Office of Administrative Hearings (OAH) lacked jurisdiction over one of the statutes cited by the petitioner.

2 sources

What were the legal and procedural reasons for granting the rehearing request?
How did the interpretation of CC&R Section 14.8 resolve the core dispute?
What was the Petitioner’s basis for claiming a violation against the Association?

Based on 2 sources

00:00
00:00

Case Participants

Petitioner Side

  • Michael J Stoltenberg (petitioner)
    Appeared on his own behalf

Respondent Side

  • Nicole Payne (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Appeared telephonically for Respondent
  • Rhea Carlisle (board member)
    Rancho Del Oro Homeowners Association
    Unpaid volunteer board member
  • Diana Crites (statutory agent)
    Rancho Del Oro Homeowners Association
    Statutory Agent for 2019 and 2020
  • Lydia Peirce Linsmeier (attorney contact)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Recipient of electronic transmission for Respondent in initial decision

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate
  • Dan Gardner (HOA coordinator)
    ADRE
    Transmitted decision electronically (c/o Commissioner Judy Lowe)

Werner A Reis v. Canyon Mesa Townhouse Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 20F-H2019026-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-07-14
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Werner A Reis Counsel —
Respondent Canyon Mesa Townhouse Association Counsel Edward O’Brien, Esq.

Alleged Violations

CC&Rs Article III, section 1

Outcome Summary

The Administrative Law Judge issued a Final Order denying the Petitioner's claim on rehearing. The ALJ found that the Association did not violate CC&Rs Article III section 1 when its Board painted pickleball lines on one of the two existing tennis courts, as the action was within the Board's authority to manage Common Areas and did not infringe on members' nonexclusive perpetual easement rights.

Why this result: Petitioner failed to meet the burden of proof by a preponderance of the evidence, and the undisputed material facts supported the finding that the Association's actions were authorized by the governing documents (CC&Rs Articles II and VI) and did not deny or impede member access or use of the Common Areas.

Key Issues & Findings

Whether Canyon Mesa Townhouse Association violated community documents CC&Rs Article III, sec. 1.

Petitioner alleged that the Board's decision to paint pickleball lines on one of two tennis courts constituted an infringement or impediment of enjoyment rights for tennis players, thereby violating CC&Rs Article III section 1.

Orders: The ALJ denied the petition (on rehearing), concluding that Petitioner failed to sustain the burden of proof. The Association was authorized to manage and maintain Common Areas, and members' nonexclusive perpetual easement rights were not violated.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Governance, CC&Rs Interpretation, Common Area Use, Easement Rights, Recreational Facilities, Pickleball
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. §§ 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. §§ 32-2199(2)
  • ARIZ. REV. STAT. §§ 32-2199.01(A)
  • ARIZ. REV. STAT. §§ 32-2199.01(D)
  • ARIZ. REV. STAT. §§ 32-2199.02
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. §§ 41-1092 et seq.
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • ARIZ. ADMIN. CODE R2-19-119
  • ARIZ. REV. STAT. §§ 41-1092.04
  • ARIZ. REV. STAT. §§ 41-1092.05(D)
  • ARIZ. REV. STAT. §§ 41-1061(A)
  • ARIZ. REV. STAT. § 41-1092.08(H)
  • ARIZ. REV. STAT. § 12-904(A)

Video Overview

Audio Overview

Decision Documents

20F-H2019026-REL-RHG Decision – 792741.pdf

Uploaded 2026-01-23T17:30:49 (47.0 KB)

20F-H2019026-REL-RHG Decision – 806920.pdf

Uploaded 2026-01-23T17:30:53 (175.9 KB)

20F-H2019026-REL-RHG Decision – ../20F-H2019026-REL/770924.pdf

Uploaded 2026-01-23T17:30:56 (153.6 KB)

Briefing Document: Reis v. Canyon Mesa Townhouse Association

Executive Summary

This document synthesizes the legal dispute between homeowner Werner A. Reis (Petitioner) and the Canyon Mesa Townhouse Association (Respondent) concerning the modification of a common area tennis court. The core of the dispute, adjudicated under case numbers 20F-H2019026-REL and 20F-H2019026-REL-RHG, was the Association’s decision in June 2019 to paint pickleball lines on one of its two community tennis courts. The Petitioner alleged this action violated Article III, section 1 of the community’s Covenants, Conditions, and Restrictions (CC&Rs), infringing upon his nonexclusive perpetual easement of use and enjoyment. The Association contended that its Board of Directors acted within its authority, as granted by the CC&Rs, to manage, maintain, and improve common areas for the benefit of all members.

Following an evidentiary hearing and a subsequent rehearing, Administrative Law Judge Jenna Clark ruled decisively in favor of the Association. The Judge found that the Petitioner failed to meet his burden of proof by a preponderance of the evidence. Key findings established that the Board was fully authorized to make the modification without a member vote, that tennis play was not restricted, and that the Petitioner’s easement rights were not violated. The Petitioner’s arguments, based on a potential future conflict rather than an actual experienced impediment, were deemed “unfounded” and “without merit.” The final order, issued on July 14, 2020, denied the petition, affirming the Association’s right to manage the recreational facilities in this manner.

——————————————————————————–

I. Case Overview

This matter involves a formal complaint by a homeowner against his townhouse association, brought before the Arizona Department of Real Estate and adjudicated by the Office of Administrative Hearings (OAH).

Case Detail

Information

Case Numbers

20F-H2019026-REL, 20F-H2019026-REL-RHG (Rehearing)

Petitioner

Werner A. Reis

Respondent

Canyon Mesa Townhouse Association

Adjudicator

Administrative Law Judge (ALJ) Jenna Clark

Core Issue

Whether the Canyon Mesa Townhouse Association violated community documents (CC&Rs Article III, section 1) by adding pickleball lines to one of two community tennis courts.

——————————————————————————–

II. Procedural History

The dispute progressed through a formal administrative hearing process, including a petition, a hearing, a decision, a request for rehearing, and a final order.

• November 18, 2019: Werner Reis files a single-issue petition with the Arizona Department of Real Estate.

• December 4, 2019: The Association files its ANSWER, denying all complaint items.

• January 31, 2020: An evidentiary hearing is held before ALJ Jenna Clark.

• February 20, 2020: The ALJ issues a decision denying the Petitioner’s petition, finding he failed to sustain his burden of proof.

• March 26, 2020: The Petitioner submits a REQUEST FOR REHEARING to the Department.

• April 22, 2020: The Department grants the Petitioner’s request for a rehearing.

• May 20, 2020: During a prehearing conference, both parties stipulate that no factual dispute exists and agree to adopt the prior hearing record and submit written closing arguments in lieu of a new hearing.

• June 24, 2020: Deadline for written closing arguments. The Association submits a 17-page argument; the OAH receives no closing argument from the Petitioner.

• July 14, 2020: The ALJ issues a final decision, again denying the petition and ordering that the initial decision from February be the final order in the matter.

——————————————————————————–

III. Analysis of the Dispute

The central conflict was the interpretation of the Association’s CC&Rs regarding the Board’s authority to modify common areas versus a member’s right to their use and enjoyment.

Petitioner’s Position (Werner A. Reis)

The Petitioner’s case was built on the premise that adding pickleball as a competing use for a tennis court fundamentally diminished the rights of tennis-playing members.

• Core Allegation: The Association violated Article III, section 1 of the CC&Rs, which grants every member a “nonexclusive perpetual easement of use and enjoyment in and to the Common Areas.”

• Argument on Infringement: The Petitioner argued the Association created a situation where “Members have the right to play tennis unless pickleball is in play,” which he claimed “constitutes an infringement of tennis players’ right of use and enjoyment.”

• Impediment of Enjoyment: He contended that reducing the number of exclusively available tennis courts from two to one amounts to “an impediment of enjoyment rights.”

• Creation of Competition: He accused the Association of “creating a new class of people” (pickleball players) who could access the courts, creating new competition for members on a first-come, first-served basis.

• Hypothetical Conflict: The “crux” of his complaint was the possible future conflict between his desire to play two singles matches simultaneously and up to sixteen “outsiders playing a raucous game of pickleball on the other designated tennis court.”

• Requested Remedy: The Petitioner requested an order requiring the Association to designate the courts for tennis playing only.

Respondent’s Position (Canyon Mesa Townhouse Association)

The Association defended its decision as a reasonable exercise of the Board’s authority to manage community property for the benefit of all residents.

• Board Authority: The Board asserted that its decision was permitted by Article II, section 1 of the CC&Rs, which grants it the authority to “manage, maintain, repair, replace and improve the Common Areas” without requiring a member vote. Article VI further requires the Board to maintain and manage recreational facilities.

• Benefit to Community: The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests, and was also considered as a potential means to generate revenue.

• No Restriction of Use: The Association maintained that tennis play was not restricted. Both courts remained available seven days a week on a first-come, first-served basis, with no changes to the reservation system. One court remained available exclusively for tennis at all times.

• Nature of Modification: The modification involved painting lines and using portable nets, which must be detached after play. The permanent tennis nets on both courts remained in place.

——————————————————————————–

IV. Summary of Evidence and Testimony

Testimony from the Association’s representatives and the Petitioner established the key undisputed facts of the case.

Testimony for the Association (Charles Mitchell & Arland Averell)

• Board Authority Confirmed: Charles Mitchell, the Board Director, testified that CC&Rs Articles II and VI, along with the Association’s Articles of Incorporation, authorize the Board to manage and improve common areas, including painting lines on the tennis courts.

• Historical Context: Arland Averell, a 20-year Board member, explained that a taped pickleball court had existed in 2015 but was damaged. The Board decided in April 2019 to reestablish it with painted lines in response to requests from several families.

• Practical Use: Pickleball is generally played only by a few families, typically on Saturday mornings. When pickleball is being played on the modified court, the other tennis court is always available.

• No Denial of Access: Director Mitchell confirmed that the Petitioner had never been denied access to the tennis courts at any time.

Testimony of the Petitioner (Werner A. Reis)

• Recent Homeowner: The Petitioner described himself as a “snowbird” who had purchased his townhouse in November 2019, shortly before filing his complaint.

• Conflict is Hypothetical: He admitted that he “has not played tennis in ‘years'” and, as a result, “has not yet found himself facing any such actual conflict.”

• No Direct Observation: The Petitioner testified that he had not personally observed contemporaneous tennis and pickleball games being played. His concerns about safety and inconvenience were speculative.

——————————————————————————–

V. Administrative Law Judge’s Findings and Final Order

The Administrative Law Judge’s decisions consistently found the Petitioner’s arguments to be legally and factually unsupported.

Conclusions of Law

• Undisputed Facts: The Judge concluded that the material facts were not in dispute. The Association’s governing documents clearly authorize the Board to maintain, manage, and improve the Common Areas, including the recreational facilities.

• No Violation of Easement Rights: The ruling stated, “What the evidence of record reflects is that Petitioner’s easement rights have not been violated by the Association because the Board painted blue pickleball lines on one of two tennis courts.”

• Petitioner’s Arguments Dismissed: The Judge found the Petitioner’s arguments to be “unfounded” and “without merit.” Specifically, the claim that the availability of only one dedicated court was an “impediment of enjoyment rights” was rejected.

• Failure to Meet Burden of Proof: In both the initial decision and the final order, the Judge concluded that the “Petitioner has failed to sustain his burden of proof” by a preponderance of the evidence that the Association violated Article III, section 1 of the CC&Rs.

• Failure to Prosecute Rehearing: The final decision noted that the Petitioner “did not provide OAH with a closing argument in support of his request for rehearing.”

Final Disposition

IT IS ORDERED that Petitioner’s petition is denied.

The decision issued on July 14, 2020, affirmed the initial February 24, 2020, decision and was designated as the FINAL ORDER in the matter, binding on both parties.

Study Guide: Reis vs. Canyon Mesa Townhouse Association

Short-Answer Quiz

Instructions: Answer the following questions in two to three sentences, drawing exclusively from the information provided in the case documents.

1. What was the specific allegation made by the Petitioner, Werner A. Reis, in his petition filed on November 18, 2019?

2. On what grounds did the Canyon Mesa Townhouse Association’s Board of Directors justify its decision to add pickleball lines to a tennis court?

3. According to the testimony of Arland Averell, what prompted the Board to reestablish a pickleball court in April 2019, and what was a prior experience with a pickleball court?

4. Describe the central, or “crux,” of the Petitioner’s complaint as summarized in the hearing evidence.

5. What key admissions did the Petitioner make during his testimony regarding his own tennis activity and his personal experience with the alleged conflict?

6. According to Director Charles Mitchell’s testimony, what is the physical setup of the nets on the courts, and how does this differ between tennis and pickleball?

7. What was the legal standard of proof the Petitioner was required to meet, and how is that standard defined in the legal documents?

8. What was the outcome of the initial evidentiary hearing held on January 31, 2020, and on what basis did the Administrative Law Judge reach this conclusion?

9. Describe the procedural change that occurred for the rehearing after the parties’ prehearing conference on May 20, 2020.

10. What action, or lack thereof, by the Petitioner on June 24, 2020, contributed to the final ruling in the rehearing?

——————————————————————————–

Answer Key

1. The Petitioner alleged that the Association violated Article III, section 1 of the Covenants, Conditions, and Restrictions (CC&Rs). The specific violation claimed was the modification of one of the two existing tennis courts for use as a pickleball court.

2. The Association’s Board of Directors justified the decision as an improvement to the Common Areas for the benefit of the Association, which it was permitted to do under Article II, section 1 of the CC&Rs. The decision was made to offer pickleball as an additional recreational feature to satisfy growing interest from owners, renters, and guests.

3. Arland Averell testified that in April 2019, the Board decided to reestablish the pickleball court with painted lines after several families requested it, and the Board also saw it as a way to generate additional revenue. A previous pickleball court established in 2015 had lines made of tape which were damaged approximately four months after being applied.

4. The crux of the Petitioner’s complaint was the possible future conflict between his personal desire to play two singles tennis matches on both courts simultaneously and the potential for up to sixteen “outsiders” to be playing a “raucous game of pickleball” on the modified court.

5. The Petitioner admitted that he had not played tennis in “years” and, as a result, had never actually faced the conflict he was complaining about. He also stated he had never been denied access to the courts and had not observed contemporaneous games of tennis and pickleball being played.

6. Director Mitchell testified that both tennis courts have fixed tennis nets. The pickleball court, however, has portable nets which must be attached for use and then detached at the end of play.

7. The Petitioner was required to prove his case by a “preponderance of the evidence.” This standard is defined as proof that convinces the trier of fact that the contention is more probably true than not, representing the greater weight of evidence.

8. Following the January 31, 2020, hearing, the Administrative Law Judge denied the Petitioner’s petition. The judge concluded that the Petitioner had failed to sustain his burden of proof and that the evidence showed his easement rights had not been violated, as one tennis court always remained available.

9. During the prehearing conference, the parties stipulated that no factual dispute existed. They agreed to vacate the scheduled rehearing, adopt the evidentiary record from the first hearing without presenting new evidence, and submit written closing arguments instead.

10. On the deadline of June 24, 2020, the Office of Administrative Hearings received a 17-page closing argument from the Respondent (the Association). The Petitioner, Werner A. Reis, failed to submit a closing argument, which was noted in the final decision denying his petition again.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. Formulate your answers by synthesizing information from across the case documents. Answers are not provided.

1. Analyze the conflict between the rights granted to members under CC&Rs Article III, section 1 (“easement of use and enjoyment”) and the powers granted to the Board under CC&Rs Article II, section 1 (“manage, maintain, repair, replace and improve the Common Areas”). How did the Administrative Law Judge resolve this apparent tension in the final decision?

2. Discuss the concept of the “burden of proof” as it applied in this case. Explain why Werner Reis’s testimony and arguments ultimately failed to meet the “preponderance of the evidence” standard.

3. Trace the procedural history of this case from the initial petition on November 18, 2019, to the final order on July 14, 2020. Identify the key events and decisions at each stage, including the initial hearing, the request for rehearing, and the final disposition.

4. Evaluate the strength of the Petitioner’s case. Focus specifically on the evidence he presented versus the evidence presented by the Association’s witnesses, Charles Mitchell and Arland Averell.

5. The Petitioner argued that the availability of only one tennis court when pickleball is in play constituted an “impediment of enjoyment rights.” Explain the Association’s counter-arguments and why the Administrative Law Judge ultimately found the Petitioner’s argument to be “unfounded” and “without merit.”

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding official (Jenna Clark) at the Office of Administrative Hearings who reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders and decisions.

ARIZ. REV. STAT.

Abbreviation for the Arizona Revised Statutes, the laws enacted by the Arizona state legislature that regulate planned communities and govern the administrative hearing process.

Association

The Canyon Mesa Townhouse Association, a non-profit Arizona corporation serving as the property owner’s association for the development. In this case, it is the Respondent.

Board of Directors (Board)

The governing body of the Association, empowered by the CC&Rs and Articles of Incorporation to manage, maintain, and improve the Common Areas.

Burden of Proof

The obligation of a party in a trial (in this case, the Petitioner) to produce the degree of evidence required to prove their case. The standard required here was “preponderance of the evidence.”

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that form an enforceable contract between the Association and each property owner, controlling property use within the development. The Restated Declaration was recorded on June 8, 2015.

Common Areas

Property within the development, such as the tennis courts, for the mutual benefit of all owners. The Association’s Board is granted authority to manage and improve these areas.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings regarding disputes in planned communities.

Easement of use and enjoyment

A non-exclusive, perpetual right granted to every member of the Association to use and enjoy the Common Areas, as established in CC&Rs Article III, section 1.

OAH (Office of Administrative Hearings)

An independent state agency to which the Department refers cases for evidentiary hearings.

Petitioner

The party who filed the petition initiating the legal action. In this case, Werner A. Reis, a townhouse owner and member of the Association.

Preponderance of the evidence

The standard of proof in this case, defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and representing the “greater weight of the evidence.”

Respondent

The party against whom the petition is filed. In this case, the Canyon Mesa Townhouse Association.

Snowbird

A colloquial term used by the Petitioner to describe himself as an out-of-state retiree who resides in Arizona during the winter months.

5 Surprising Lessons from a Bizarre HOA Lawsuit Over a Pickleball Court

Introduction: The Battle for the Tennis Court

Disputes with a homeowner association (HOA) are a common feature of suburban life, often revolving around landscaping, paint colors, or parking. But when you combine the rigid world of HOA rules with the explosive popularity of pickleball, you get a conflict that is uniquely modern. In a real-life legal case from Sedona, Arizona, one homeowner took his HOA to court over the decision to add pickleball lines to one of the community’s two tennis courts.

What might seem like a minor neighborhood squabble became a formal legal challenge, complete with hearings, testimony, and an official judicial decision. The court documents from this case offer a surprisingly revealing look into community rules, personal grievances, and the peculiar nature of legal battles. More importantly, they reveal several counter-intuitive lessons for anyone living in a planned community.

——————————————————————————–

1. You Can Sue Over a Problem That Doesn’t Exist (But You Probably Won’t Win)

The core of the legal challenge was filed by Werner Reis, a new homeowner in the Canyon Mesa Townhouse Association. His complaint was over the modification of one of two community tennis courts to accommodate pickleball. The “crux” of his complaint was a concern over a possible future conflict: a hypothetical scenario where he might want to play two singles tennis matches while a large group of “outsiders” played a “raucous game of pickleball.”

This seems like a specific, if forward-thinking, concern. But the timeline and testimony revealed a truly bizarre situation. According to court records, Reis purchased his townhouse in November 2019 and filed his lawsuit on or about November 18, 2019—meaning he initiated a formal legal action within days or weeks of becoming a member of the community. Even more stunning was this fact from his own testimony:

Petitioner has not played tennis in “years.” As such, Petitioner has not yet found himself facing any such actual conflict.

The entire legal challenge—filed almost immediately upon moving in—was based on a hypothetical grievance for a sport the petitioner hadn’t even played in years. Unsurprisingly, the Administrative Law Judge found his argument “unfounded.” The lesson is clear: a legal claim based on “what if” is unlikely to succeed without any actual harm.

2. Your HOA’s Governing Documents Are a Legally Binding Contract

Many homeowners view their HOA’s rules as guidelines, but legally, they are a binding contract called Covenants, Conditions, and Restrictions (CC&Rs). When you buy a property, you agree to their terms.

In its defense, the HOA pointed directly to its governing documents. Article VI requires the Board to manage all recreational facilities, and Article II, section 1, gives it the explicit authority to “manage, maintain, repair, replace and improve the Common Areas” for the “general welfare and benefit of the Owners”—all without a member vote. This clause was the legal bedrock of the Board’s defense; in the eyes of the law, painting lines to accommodate a popular new sport is not a degradation of an amenity, but an improvement of it, squarely within the Board’s mandate.

The tennis courts are legally defined as “Common Areas.” This gave the Board the unambiguous right to paint new lines on them. This is an impactful takeaway for all homeowners: while you may feel a sense of personal ownership over shared amenities, the Board has broad, legally-defined powers to manage them for the entire community.

3. A Board’s Duty Is to Adapt to the Community’s Evolving Interests

The HOA Board’s decision wasn’t a whim; it was a response to a persistent community interest with a history. Testimony from a 20-year Board member, Arland Averell, revealed that in April 2019, the Board decided to reestablish a pickleball court “after several families requested they do so.” As a secondary benefit, the Board also saw it as a way to “generate additional revenue.”

But this wasn’t the community’s first foray into the sport. Court records show that back in 2015, the association had a pickleball court with taped lines, but it was damaged after only four months. This context is crucial. The 2019 decision to paint permanent lines was not just a reaction to new requests but an institutional lesson learned. It shows the Board was responding to a long-term, evolving interest and choosing a more durable solution, fulfilling its duty to adapt common resources to meet new demands.

4. An “Infringement” Requires an Actual Impediment

The petitioner’s legal argument was very specific. He claimed that adding pickleball “constitutes an infringement of tennis players’ right of use and enjoyment” and that having only one guaranteed tennis court is an “impediment of enjoyment rights.” He summarized his grievance with the line:

“Members have the right to play tennis unless pickleball is in play.”

However, the facts presented in court systematically dismantled this argument. The evidence showed:

• One of the two courts remained exclusively for tennis at all times.

• Both courts were still available for tennis on a first-come, first-served basis.

• The pickleball nets were portable and had to be detached at the end of play, leaving the court ready for tennis.

• Most critically, the petitioner himself testified that he had “never been denied access to the tennis courts at issue at any time.”

The judge determined that no violation occurred because the petitioner’s rights were never actually impeded. This reveals the critical legal distinction between an inconvenience and an infringement. The petitioner’s entire case rested on a hypothetical future inconvenience, but the law requires an actual, demonstrable impediment to rights. Since his own testimony confirmed one had never occurred, his claim was impossible to prove.

5. If You Demand a Rehearing, You Should Probably Show Up with an Argument

In a final, bizarre twist, the story doesn’t end with the initial ruling in February 2020. The petitioner filed a “REQUEST FOR REHEARING,” which the court granted, giving him a second chance to make his case.

To streamline the process, both parties agreed to skip a new evidentiary hearing and instead submit written “Closing Arguments” to the judge. The HOA’s legal team submitted a detailed, 17-page argument. What happened next was documented in the final court order:

OAH did not receive a closing argument from Petitioner.

The petitioner, who had initiated the entire legal process and successfully demanded a second chance, was given the final word. He had the opportunity to submit a closing argument that could have vindicated his entire complaint. Instead, he offered only silence. By ghosting his own rehearing, he left the judge with no choice but to conclude that he had once again “failed to sustain his burden of proof” and make the original ruling against him final.

——————————————————————————–

Conclusion: The Court of Community Opinion

This case is a fascinating lesson in the difference between a personal annoyance and an actual legal violation. It demonstrates that in the world of HOAs, feelings and hypothetical concerns carry little weight compared to the cold, hard text of the governing documents. Those documents give boards significant power, but also charge them with the difficult task of balancing the desires of all residents, not just the grievance of one.

As pickleball courts continue to replace shuffleboard courts and community gardens pop up in unused green spaces, this story leaves us with a critical question: As our communities change, how do we balance protecting the familiar traditions we love with making space for the new ones our neighbors are asking for?

Case Participants

Petitioner Side

  • Werner A Reis (petitioner)
    Appeared on his own behalf

Respondent Side

  • Edward O’Brien (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for Canyon Mesa Townhouse Association
  • Mark Sall (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
    Counsel for Canyon Mesa Townhouse Association (Also cited as Mark Sahl)
  • Charles Mitchell (board member, witness)
    Canyon Mesa Townhouse Association
    Current Director of the Association's Board
  • Arland Averell (board member, witness)
    Canyon Mesa Townhouse Association
    Served on the Board for the past twenty years

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (commissioner)
    ADRE
    Commissioner of the Arizona Department of Real Estate
  • DGardner (department contact)
    ADRE
    Electronic contact for ADRE
  • c. serrano (staff)
    OAH
    Administrative staff/Clerk noted on document transmission

John H. Kelly v. Cortez Canyon Unit Owners Association

Posted on by

Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John H. Kelly Counsel —
Respondent Cortez Canyon Unit Owners Association Counsel Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Related election workflow tool

Many HOA election disputes start with preventable workflow problems: unclear ballot language, separate-vote issues, quorum tracking, paper/online reconciliation, proxy handling, or incomplete records. HOABallot is a separate platform built to document the voting workflow from notice through certification.

Preview HOABallot election workflows

Video Overview

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2026-04-24T11:20:28 (142.6 KB)

19F-H1919060-REL Decision – 737890.pdf

Uploaded 2026-01-23T17:29:30 (142.6 KB)

Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

◦ 11 signatures were removed because they were from non-owner renters or occupants.

◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.

Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.

——————————————————————————–

Part I: Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.

1. Who were the primary parties involved in this hearing, and what were their respective roles?

2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?

3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?

4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?

5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.

6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?

7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?

8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?

9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?

10. What was the final ORDER issued by the Administrative Law Judge in this case?

——————————————————————————–

Part II: Answer Key

1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.

2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.

3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.

4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.

5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.

6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.

7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.

8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.

9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.

10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.

——————————————————————————–

Part III: Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.

2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.

3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.

4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?

5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?

——————————————————————————–

Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.

Answer

The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.

Association

The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.

Board of Directors (the Board)

The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.

Burden of Proof

The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.

Bylaws

The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.

Covenants, Conditions, and Restrictions (CC&Rs)

The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Eligible Votes

A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.

Findings of Fact

The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.

OAH (Office of Administrative Hearings)

An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.

The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, John H. Kelly.

Petition

The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.

Preponderance of the Evidence

The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.

Special Meeting

A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.

Unit Owner

An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.

He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.

Introduction: The Power and Pitfalls of Community Action

Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.

However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.

1. Not All Signatures Are Created Equal: The Validity Gauntlet

The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.

In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.

The association disqualified 23 signatures for specific, documented reasons:

• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.

• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.

• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.

This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.

2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote

Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.

The bylaw states:

“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”

This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.

3. Process is Paramount: The Signature That Never Was

Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.

However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.

The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”

Conclusion: Knowledge is Power in an HOA

Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:

1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.

2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.

3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.

This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?

Case Participants

Petitioner Side

  • John H. Kelly (petitioner)

Respondent Side

  • Jonathan A. Dessaules (attorney)
    Dessaules Law Group
    Appeared on behalf of Respondent
  • Saundra Garcia (board member)
    Cortez Canyon Unit Owners Association
    Called as a witness and testified as Board President
  • Jacob A. Kubert (attorney)
    Dessaules Law Group
    Counsel receiving notice of decision

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted to Commissioner

Other Participants

  • Jeffery Law (owner)
    Cortez Canyon Unit Owners Association
    Unit owner whose signature Petitioner secured but was not submitted to the Association

Tom Barrs v. Desert Ranch Homeowners Association

Posted on by

Case Summary

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

Parties & Counsel

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

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

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

Key Issues & Findings

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

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

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

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

Disposition: petitioner_win

Cited:

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

Analytics Highlights

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

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

Video Overview

Audio Overview

Decision Documents

19F-H1918037-REL Decision – 737525.pdf

Uploaded 2026-04-28T10:46:18 (176.7 KB)

19F-H1918037-REL Decision – 700566.pdf

Uploaded 2026-04-28T10:46:31 (149.3 KB)

19F-H1918037-REL Decision – 737525.pdf

Uploaded 2026-04-24T11:18:19 (176.7 KB)

19F-H1918037-REL Decision – 700566.pdf

Uploaded 2026-04-24T11:18:22 (149.3 KB)

Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.

The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.

The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.

——————————————————————————–

I. Case Overview

• Parties:

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

◦ Respondent: Desert Ranch Homeowners Association (“the Association”).

• Venue: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.

• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.

• Case Numbers:

◦ 19F-H1918037-REL (Initial Decision)

◦ 19F-H1918037-REL-RHG (Rehearing Decision)

II. Chronology of the Dispute

Jul. 19, 2017

Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.

Jul. 18, 2018

Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.

Nov. 1, 2018

Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.

Nov. 2, 2018

Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.

Nov. 18, 2018

Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.

Dec. 17, 2018

Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.

Mar. 6, 2019

Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.

Mar. 11, 2019

Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.

Mar. 17, 2019

Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”

Mar. 21, 2019

The first evidentiary hearing is held at the OAH.

Apr. 10, 2019

The initial ALJ Decision is issued, denying the Petitioner’s petition.

Jun. 10, 2019

Petitioner submits an appeal to the Department, which is granted.

Aug. 27, 2019

A rehearing is held at the OAH.

Sep. 12, 2019

The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.

III. The Records Request and Response

Petitioner’s Request (November 1, 2018)

The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:

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

Association’s Response (November 18, 2018)

The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.

Petitioner’s Clarification (March 6, 2019)

In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:

• Copies of violation notices and “Full Compliance” correspondence.

• Complaint correspondence from homeowners regarding shrubs and subsequent citations.

• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.

• Original submittals and approvals for a garage remodel and septic install.

IV. Analysis of the Two Administrative Rulings

The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.

A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)

• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.

• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”

• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.

B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)

• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.

• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:

1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.

2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).

• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”

• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.

V. Key Arguments and Testimonies

• Petitioner (Tom Barrs):

◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.

◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.

◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.

• Respondent (via Brian Schoeffler):

◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.

◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.

◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”

◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.

VI. Final Order and Penalties

The binding order issued on September 12, 2019, following the rehearing, mandated the following:

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

2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.

3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.

Study Guide: Barrs v. Desert Ranch Homeowners Association

This guide provides a comprehensive review of the administrative legal case between petitioner Tom Barrs and respondent Desert Ranch Homeowners Association, covering the initial hearing and the subsequent rehearing. It includes a quiz to test factual recall, essay questions for deeper analysis, and a glossary of key terms.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences based on the provided source documents.

1. Who are the primary parties in this legal dispute, and what are their respective roles?

2. What specific Arizona Revised Statute was the Desert Ranch Homeowners Association accused of violating, and what does this statute generally require?

3. What was the exact nature of the records request Tom Barrs submitted on November 1, 2018?

4. In the initial hearing, what was the key reason the Administrative Law Judge ruled in favor of the Association?

5. What was the Association’s initial response to Barrs’ records request, and why did Barrs consider it incomplete?

6. Upon what grounds was a rehearing of the case granted?

7. What crucial new evidence presented at the rehearing changed the outcome of the case?

8. How did the Association’s own bylaws and concessions during the rehearing weaken its defense?

9. What was the final ruling in the Administrative Law Judge’s decision after the rehearing?

10. What financial penalties were imposed on the Desert Ranch Homeowners Association in the final order?

——————————————————————————–

Answer Key

1. The primary parties are Tom Barrs, the Petitioner, and the Desert Ranch Homeowners Association, the Respondent. Barrs, a homeowner and member of the Association, filed a petition alleging the Association failed to comply with a records request. The Association, represented in the hearings by Brian Schoeffler, defended its actions against this claim.

2. The Association was accused of violating A.R.S. § 33-1805. This statute requires a homeowners’ association to make its financial and other records reasonably available for examination by a member within ten business days of a request. It also allows the association to charge a fee of not more than fifteen cents per page for copies.

3. On November 1, 2018, Tom Barrs requested “a copy of all EDC actions, written requests, and written approvals from October 2017 through October 2018.” He specified that electronic copies were preferable but that he was also willing to pick up hard copies.

4. In the initial hearing, the judge ruled for the Association because the evidence indicated Barrs had failed to properly submit his request to all members of the Association’s Board. This procedural error meant Barrs failed to establish by a preponderance of the evidence that the Association was in violation of the statute.

5. The Association responded on November 18, 2018, by providing Barrs with a summary table of Environmental Design Committee (EDC) actions. Barrs considered this incomplete because his request was for the underlying communications, including all written requests and approvals, not just a summary list of actions.

6. A rehearing was granted after Petitioner Tom Barrs submitted an appeal to the Arizona Department of Real Estate on June 10, 2019. The Department granted the appeal and referred the matter back to the Office of Administrative Hearings for a new evidentiary hearing.

7. The crucial new evidence showed that the Association’s President had previously appointed Brian Schoeffler as Barrs’ primary contact for records requests. This evidence demonstrated that Barrs had, in fact, followed the specific instructions given to him and was not required to send his request to all board members, directly contradicting the basis for the initial ruling.

8. The Association conceded that its governing documents do not require members to copy all Board members on records requests. It also admitted that its own bylaws regarding the submission of forms for such requests were not adhered to or enforced, which undermined its argument that Barrs had failed to follow proper procedure.

9. The final ruling, issued September 12, 2019, granted the Petitioner’s petition. The Administrative Law Judge concluded that the Association’s conduct violated A.R.S. § 33-1805 because it did not fully comply with Barrs’ specific and properly submitted request.

10. The Association was ordered to reimburse Petitioner Tom Barrs’ $500.00 filing fee. Additionally, a civil penalty of $500.00 was levied against the Association, payable to the Arizona Department of Real Estate.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for longer, essay-format answers that require critical thinking and synthesis of information from the case documents. Answers are not provided.

1. Compare and contrast the Findings of Fact and Conclusions of Law in the initial decision (April 10, 2019) with those in the rehearing decision (September 12, 2019). Analyze how specific factual clarifications led to a complete reversal of the legal conclusion.

2. Explain the legal standard of “preponderance of the evidence” as defined in the decisions. Detail why the petitioner initially failed to meet this burden and what specific evidence allowed him to successfully meet it in the rehearing.

3. Analyze the testimony and arguments presented by Brian Schoeffler on behalf of the Association across both hearings. Discuss the consistency of his defense, his reasoning based on prior OAH decisions, and his stated fear that providing more documents could be interpreted as an “admission of guilt.”

4. Trace the complete procedural timeline of case No. 19F-H1918037-REL, from the filing of the initial petition on December 17, 2018, to the final, binding order on September 12, 2019. Highlight the roles of the Arizona Department of Real Estate and the Office of Administrative Hearings (OAH).

5. Using the details of this case, write an analysis of the function and importance of A.R.S. § 33-1805 in regulating the relationship between a homeowner and a homeowners’ association. Discuss the statute’s requirements for both parties and the consequences of non-compliance.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent, impartial judge who presides over administrative hearings at government agencies like the Office of Administrative Hearings. In this case, the ALJ was Jenna Clark.

A.R.S. § 33-1805

The section of the Arizona Revised Statutes that governs a homeowner’s right to access the records of a homeowners’ association. It mandates that an association must make records available for examination within ten business days of a request.

Associated Asset Management (AAM)

The management company that served as the accounting firm for the Desert Ranch Homeowners Association. Petitioner was instructed at one point to direct requests to Lori Lock-Lee at AAM.

Board of Directors (the Board)

The governing body that oversees the operations of the Desert Ranch Homeowners Association.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the rules for a planned community or subdivision. The Desert Ranch HOA is governed by its CC&Rs.

Environmental Design Committee (EDC)

A committee within the Desert Ranch Homeowners Association responsible for reviewing and approving architectural and landscaping changes. Brian Schoeffler was the Chairman of the EDC.

Petitioner

The party who files a petition to initiate a legal proceeding. In this case, Tom Barrs is the Petitioner.

Preponderance of the evidence

The standard of proof in this civil administrative case. It is defined as evidence that is more convincing and has superior weight, inclining a fair mind to one side of the issue over the other.

Rehearing

A second hearing of a case, granted upon appeal, to re-examine the issues and evidence. The rehearing in this case took place on August 27, 2019, and resulted in the reversal of the initial decision.

Respondent

The party against whom a petition is filed. In this case, the Desert Ranch Homeowners Association is the Respondent.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona that conducts evidentiary hearings for other state agencies, providing a neutral forum for resolving disputes like the one between Barrs and the Association.

Briefing Document: Barrs v. Desert Ranch Homeowners Association (Case No. 19F-H1918037-REL)

Executive Summary

This briefing document synthesizes two Administrative Law Judge (ALJ) decisions concerning a records request dispute between homeowner Tom Barrs (Petitioner) and the Desert Ranch Homeowners Association (Respondent). The core of the dispute was the Association’s failure to fully comply with a request for records under Arizona Revised Statutes (A.R.S.) § 33-1805.

The case is notable for its complete reversal upon rehearing. An initial ruling on April 10, 2019, favored the Association, finding that the Petitioner had failed to properly submit his request by not emailing all Board members. However, this decision was overturned in a final, binding order on September 12, 2019. In the rehearing, the Petitioner presented new evidence demonstrating he was following the Association’s own prior written instructions for submitting such requests.

The ALJ ultimately concluded that the Association did violate A.R.S. § 33-1805 by providing only a summary document instead of making the full records available for examination. Consequently, the final order granted the Petitioner’s petition, mandated the full reimbursement of his $500 filing fee, and levied an additional $500 civil penalty against the Association. The case underscores the critical importance of procedural compliance and the weight of documented instructions in governing interactions between homeowners and their associations.

——————————————————————————–

I. Case Overview

• Parties:

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

◦ Respondent: Desert Ranch Homeowners Association (“the Association”).

• Venue: Arizona Office of Administrative Hearings (OAH).

• Presiding Judge: Administrative Law Judge (ALJ) Jenna Clark.

• Core Allegation: Whether the Desert Ranch Homeowners Association violated A.R.S. § 33-1805 by failing to fulfill a records request submitted by the Petitioner.

• Case Numbers:

◦ 19F-H1918037-REL (Initial Decision)

◦ 19F-H1918037-REL-RHG (Rehearing Decision)

II. Chronology of the Dispute

Jul. 19, 2017

Association President Catherine Overby appoints Environmental Design Committee (EDC) Director Brian Schoeffler as the Petitioner’s primary contact for records requests.

Jul. 18, 2018

Ms. Overby instructs the Petitioner to direct all requests to the Association’s management company, Associated Asset Management (AAM), specifically to Lori Lock-Lee.

Nov. 1, 2018

Petitioner submits the records request at issue via email to Catherine Overby, Brian Schoeffler, and Lori Loch-Lee.

Nov. 2, 2018

Ms. Loch-Lee acknowledges the request, states she will forward it to all Board members, and clarifies that AAM is only the Association’s accounting firm.

Nov. 18, 2018

Mr. Schoeffler responds on behalf of the Association, providing a summary table of EDC actions but not the full records. He also advises the Petitioner that all Board members must be copied on future requests.

Dec. 17, 2018

Petitioner files a single-issue petition against the Association with the Arizona Department of Real Estate, paying a $500 fee.

Mar. 6, 2019

Petitioner sends a follow-up email specifying the exact documents he is seeking, referencing items listed in the summary table he received.

Mar. 11, 2019

Mr. Schoeffler replies, asserting the request was already fulfilled and instructing the Petitioner to submit a new request for the additional items.

Mar. 17, 2019

Mr. Schoeffler emails again, claiming the original request was improperly submitted to only two of four Board members and that providing more documents could be seen as an “admission of guilt.”

Mar. 21, 2019

The first evidentiary hearing is held at the OAH.

Apr. 10, 2019

The initial ALJ Decision is issued, denying the Petitioner’s petition.

Jun. 10, 2019

Petitioner submits an appeal to the Department, which is granted.

Aug. 27, 2019

A rehearing is held at the OAH.

Sep. 12, 2019

The final ALJ Decision is issued, reversing the initial ruling and granting the Petitioner’s petition.

III. The Records Request and Response

Petitioner’s Request (November 1, 2018)

The Petitioner submitted a clear and direct request for specific records via email, citing the relevant statute:

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

Association’s Response (November 18, 2018)

The Association did not provide the requested documents (e.g., letters, emails, applications). Instead, it provided a “summary table listing of some, not all, EDC actions.” As of the August 27, 2019, rehearing, the Petitioner had still not received the full documentation he originally requested.

Petitioner’s Clarification (March 6, 2019)

In an attempt to resolve the issue, the Petitioner sent a detailed follow-up email outlining the specific missing records by referencing the line items in the Association’s own summary table. This demonstrated that his request was not for a vague “list of actions” but for the underlying correspondence. This included requests for:

• Copies of violation notices and “Full Compliance” correspondence.

• Complaint correspondence from homeowners regarding shrubs and subsequent citations.

• Submittal correspondence for a project from Mr. Schoeffler himself, along with approvals.

• Original submittals and approvals for a garage remodel and septic install.

IV. Analysis of the Two Administrative Rulings

The opposite outcomes of the two hearings hinged entirely on the validity of the Petitioner’s original email submission.

A. Initial ALJ Decision (April 10, 2019) – In Favor of Respondent (HOA)

• Central Finding: The Petitioner failed to properly submit his records request because he sent it to only two Board members, not the entire Board.

• Reasoning: The ALJ concluded that because the request was improperly submitted, the Association was not obligated to fulfill it under A.R.S. § 33-1805. Therefore, its failure to provide the full records did not constitute a violation. The decision noted, “Because the credible evidence of record reflects that Petitioner failed to properly submit his records request to the Board, Petitioner has failed established by a preponderance of the evidence that the Association was in violation…”

• Outcome: The petition was denied. The Association was not required to reimburse the Petitioner’s filing fee, and his request for a civil penalty was denied.

B. Rehearing ALJ Decision (September 12, 2019) – In Favor of Petitioner (Barrs)

• Central Finding: The Petitioner did properly submit his records request by emailing the designated contacts.

• Key New Evidence: The Petitioner introduced two exhibits proving he had received explicit instructions from the Association President on where to direct his requests:

1. A July 19, 2017 communication appointing EDC Chairman Brian Schoeffler as his primary records request contact.

2. A July 18, 2018 communication instructing him to direct requests to the management company (AAM).

• Reasoning: The ALJ found this evidence dispositive, stating, “Petitioner’s November 01, 2018, records request was not required to be sent to all members of the Association’s Board, as Petitioner had expressly been instructed to only send his records requests to the Association’s EDC Chairman, Mr. Schoeffler, which he did.” With the submission deemed proper, the focus shifted to the response. The ALJ concluded that providing a summary table was not compliant with the statute’s requirement to make records “reasonably available for examination.”

• Outcome: The initial decision was reversed, and the Petitioner’s petition was granted.

V. Key Arguments and Testimonies

• Petitioner (Tom Barrs):

◦ Argued his dispute was with the adequacy of the Association’s response, not its timeliness.

◦ Alleged the Association acted in bad faith and willfully withheld records, citing a previous OAH adjudication over a similar request.

◦ Successfully demonstrated he had followed the Association’s own prior instructions for submitting requests.

• Respondent (via Brian Schoeffler):

◦ Maintained that the request was invalid because it was not sent to all four Board members, an argument that collapsed during the rehearing.

◦ Admitted the Association’s governing documents do not contain a requirement that all Board members be copied on records requests.

◦ Justified the incomplete response by stating that providing additional documents after the petition was filed could be “interpreted as an admission of guilt.”

◦ Reasoned that the Association acted as it did because a previous, similar dispute had been decided in its favor.

VI. Final Order and Penalties

The binding order issued on September 12, 2019, following the rehearing, mandated the following:

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

2. Filing Fee Reimbursement: The Association was ordered to reimburse the Petitioner’s $500 filing fee.

3. Civil Penalty: The Association was ordered to pay a civil penalty of $500 to the Arizona Department of Real Estate for its violation of A.R.S. § 33-1805.

Case Participants

Petitioner Side

  • Tom Barrs (petitioner)
    Appeared on his own behalf in the initial hearing; appeared as a witness in the rehearing.
  • Jonathan Dessaules (petitioner attorney)
    Dessaules Law Group
    Appeared on behalf of Petitioner in the rehearing.

Respondent Side

  • Brian Schoeffler (respondent representative / EDC chairman / witness)
    Desert Ranch Homeowners Association
    Also identified as a Board Director.
  • Catherine Overby (HOA president / board member)
    Desert Ranch Homeowners Association
    Appointed Mr. Schoeffler as Petitioner’s primary records request contact.
  • Lori Loch-Lee (property manager)
    Associated Asset Management (AAM)
    Vice President of Client Services.
  • Amanda Shaw (property manager)
    AAM LLC
    Contact for Respondent.
  • B. Austin Baillio (HOA attorney)
    Maxwell & Morgan, P.C.
    Received electronic transmission of the rehearing decision.

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
  • Judy Lowe (Commissioner)
    ADRE
  • Dan Gardner (ADRE staff)
    ADRE
    HOA Coordinator.

Other Participants

  • Gerard Manieri (observer)
    Listed as 'G. Mangiero' in initial hearing source.
  • Peter Ashkin (observer)
    Observed initial hearing.
  • Stephen Banks (observer)
    Observed initial hearing.
  • Noah Banks (observer)
    Observed initial hearing.
  • Stephen Barrs (observer)
    Observed rehearing.
  • Abraham Barrs (observer)
    Observed rehearing.

Loraine Brokaw vs. Sin Vacas Property Owners Association

Posted on by

Case Summary

Case ID 19F-H1918017-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-04-01
Administrative Law Judge Jenna Clark
Outcome The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Loraine Brokaw Counsel —
Respondent Sin Vacas Property Owners Association Counsel Sean K Moynihan, Esq. and Jason E Smith, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1803; Bylaws Article IV, Section 6

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the HOA's action to uniformly assess all CR-1 Lots (including Petitioner's two uncombined lots) adhered to the Association Bylaws, which require uniform rates, and did not violate ARS § 33-1803. The governing documents took precedence over any prior reduced assessment granted by a previous Board Order.

Why this result: Petitioner failed to prove the Association’s interpretation of the Bylaws requiring uniform assessment for all CR-1 lots was incorrect or unlawful, as her lots remained separate parcels according to the county map.

Key Issues & Findings

Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements.

Petitioner challenged the Association's decision to raise her assessment from 150% to 200% (full rate for two lots) based on the Association's interpretation that the Bylaws require uniform assessment rates for all CR-1 lots, arguing the new rate violated a long-standing prior Board Order (2003) granting her a reduced rate.

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 33-1802(4)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Bylaws Article IV, Covenant For Maintenance Assessments, Section 6

Analytics Highlights

Topics: HOA Assessment Dispute, Uniform Assessment Rate, Bylaws Interpretation, Planned Community, Governing Document Precedence
Additional Citations:

  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1803
  • ARIZ. REV. STAT. § 33-1802(4)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY 1220 (8th ed. 1999)

Video Overview

Audio Overview

Decision Documents

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2026-04-24T11:16:43 (137.2 KB)

19F-H1918017-REL Decision – 698354.pdf

Uploaded 2026-01-23T17:26:53 (137.2 KB)

Briefing Document: Brokaw v. Sin Vacas Property Owners Association (Case No. 19F-H1918017-REL)

Executive Summary

This document synthesizes the findings of the Administrative Law Judge Decision in the case of Loraine Brokaw versus the Sin Vacas Property Owners Association (POA). The central conflict concerned the POA Board’s decision to increase Ms. Brokaw’s annual assessment from 150% to 200% for a single residence constructed across two separate lots.

The Petitioner, Ms. Brokaw, argued that this increase was unlawful and capricious, violating a nearly thirty-year practice that had been formalized by a 2003 Board decision granting her a reduced assessment. The POA contended that its action, taken on the advice of counsel, was necessary to comply with the Association’s governing documents, which mandate uniform assessments for all lots.

The Administrative Law Judge (ALJ) ultimately denied the homeowner’s petition. The decision established a critical legal precedent for the Association: the unambiguous language of the governing Covenants, Conditions, and Restrictions (CC&Rs) takes precedence over any past Board decisions, informal agreements, or long-standing practices, regardless of their duration. Because the Petitioner owns two distinct, legally unconsolidated lots, the ALJ found that the Board’s action to assess each lot at the full, uniform rate was not a violation, but rather a correct and required application of the community’s Bylaws.

——————————————————————————–

I. Case Overview

• Parties: Loraine Brokaw (Petitioner) vs. Sin Vacas Property Owners Association (Respondent).

• Jurisdiction: Office of Administrative Hearings (OAH), State of Arizona.

• Case Number: 19F-H1918017-REL.

• Presiding Judge: Administrative Law Judge Jenna Clark.

• Hearing Date: March 25, 2019.

• Decision Date: April 01, 2019.

II. Central Issue of the Dispute

The hearing was convened to address the following issue, as stated in the NOTICE OF HEARING:

“Whether Sin Vacas Property Owners Association (Respondent) arbitrarily and capriciously raised annual assessments for some homeowners and not others in contravention of decades of past board practice and contractual agreements based on utterly flawed legal theory, which, in fact, changed from attorney to attorney.”

The core of the dispute was the Association Board’s decision in 2017 to increase the annual assessment for the Petitioner’s property—a single home built across two adjacent lots—from 150% to 200% of the standard single-lot assessment rate. The Petitioner sought to compel the Board to revert to the 150% assessment schedule and reimburse her for costs associated with the petition.

III. Petitioner’s Position and Key Testimony

• Property History: The Petitioner testified that her husband first bought property in Sin Vacas in 1979. In 2003, the couple purchased an adjacent lot and constructed a new home that spanned across both properties (Lots 156 and 157).

• Claim of Lot Combination: The Petitioner claimed to have legally combined the two lots but presented no supporting documentation to the tribunal.

• Historical Assessment Practice: The Petitioner testified that as of 2003, the Association’s practice was to assess properties as follows:

◦ 100%: For a home on a single lot.

◦ 25%: For an undeveloped vacant lot.

◦ 150%: For a residence situated on two lots.

• 2003 Board Decision: On March 24, 2003, the Petitioner received written confirmation from the Board that it had voted to grant her a reduced assessment of 150%, formalizing the existing practice for her property.

• 2017 Assessment Change: On or about December 4, 2017, the Petitioner received a letter from the Association’s management company advising that the Board had decided to raise her assessment to 200%, citing “advice of counsel.”

• Rationale for Increase: The Petitioner stated she was given varying reasons for the change but was ultimately informed that the Board determined all plats needed to be assessed uniformly according to the Association’s governing documents. She was also told that to be assessed as a single lot, she would need to formally combine the lots on the county plat map, a process estimated to cost between $3,000 and $10,000 and require the permission of every other homeowner in the community.

IV. Respondent’s Position

The Sin Vacas Property Owners Association declined to present witnesses or exhibits. Its position at the hearing was that the dispute arose from differing interpretations of the language within the governing Bylaws. The Association’s counsel stated that the matter would be resolved based on the tribunal’s interpretation of the relevant governing texts.

V. Analysis of Governing Documents

The decision rested heavily on the interpretation of the Association’s Covenants, Conditions, and Restrictions (CC&Rs), recorded on April 13, 1978.

Document Section

Key Provision

Relevance to the Case

Bylaws Article I, Section 5

Defines a “Lot” as “any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties.”

This established that the Petitioner’s two properties, being separately numbered on the subdivision map, constitute two distinct lots for assessment purposes.

Bylaws Article IV, Section 6

“Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”

This clause was central to the Judge’s decision. It establishes a clear mandate for uniformity in assessments across all lots of the same type (CR-1), which the 150% rate violated by treating two CR-1 lots differently from others.

Bylaws Article IV, Section 7

States the Board of Directors shall “fix the amount of the annual assessment against each Lot.”

This empowers the Board to set assessments but reinforces that they must do so on a per-lot basis, consistent with the uniformity requirement.

VI. Judge’s Findings and Conclusions of Law

The Administrative Law Judge made the following key determinations, leading to the denial of the petition:

• Failure to Meet Burden of Proof: The Petitioner failed to prove by a preponderance of the evidence that the Association violated community documents or Arizona statutes.

• Undisputed Material Facts: The Judge found it undisputed that:

1. The Petitioner owns two distinct CR-1 lots (Lot 156 and Lot 157).

2. The lots have never been legally combined or consolidated on the Pima County Assessor’s plat map.

3. The Petitioner’s residence is constructed across both lots.

• Primacy of Governing Documents: The central conclusion of the decision was that the Association’s governing documents supersede any past Board decisions or long-standing informal agreements. The Judge stated:

• Uniformity is Mandatory: The Bylaws require that the Association assess all developed CR-1 lots at a uniform rate. By assessing both of the Petitioner’s lots at the same full rate as every other developed CR-1 lot, the Association was found to be complying with the Declaration.

• Board’s Action as Corrective: The 2017 Board’s action was not a breach of contract or an unlawful act. Instead, it was an appropriate correction of the previous Board’s 2003 order, which was inconsistent with the Bylaws’ uniformity mandate. The Petitioner’s argument that the 2003 order should supersede the 2017 order was deemed inaccurate.

VII. Final Order

Based on the findings and legal conclusions, the Administrative Law Judge ordered that the Petitioner’s petition be denied.

The decision affirmed that the Sin Vacas Property Owners Association Board’s action to uniformly assess all CR-1 lots did not violate Arizona state law (ARIZ. REV. STAT. § 33-1803) or the Association’s Bylaws.

Study Guide: Brokaw v. Sin Vacas Property Owners Association

This guide reviews the key facts, legal arguments, and final ruling in the administrative hearing case No. 19F-H1918017-REL, Loraine Brokaw v. Sin Vacas Property Owners Association.

Short-Answer Quiz

Answer each question in 2-3 sentences, based on the provided source document.

1. Who were the primary parties involved in the hearing, and what were their respective roles?

2. What specific relief did the Petitioner request from the Office of Administrative Hearings?

3. What specific action taken by the Respondent prompted the Petitioner to file her petition?

4. Describe the assessment practice that the Sin Vacas Board had in place for the Petitioner’s property from 2003 until the change in 2017.

5. What was the Association’s stated reason for increasing the Petitioner’s assessment from 150% to 200%?

6. According to the Association’s Bylaws, what is the rule for how special assessments must be fixed and apportioned?

7. On what grounds did the Administrative Law Judge determine that the Petitioner owned two separate lots?

8. What is the legal standard of proof required in this case, and did the Petitioner successfully meet it?

9. Why did the Judge rule that the 2003 Board Order reducing the Petitioner’s assessment was not a binding contract?

10. What was the final order issued by the Administrative Law Judge in this matter?

——————————————————————————–

Answer Key

1. The primary parties were Loraine Brokaw, the Petitioner, who brought the action, and the Sin Vacas Property Owners Association, the Respondent. The case was heard by Administrative Law Judge Jenna Clark from the Office of Administrative Hearings.

2. The Petitioner requested that the Association’s Board be compelled to honor the 30-year assessment schedule and charge her the 150% assessment rate. She also requested that the Board reimburse her for the costs of bringing the petition.

3. The Petitioner filed her petition after receiving a letter on or about December 4, 2017, from the Association’s management company. This letter advised her that the Board had decided to raise her assessment from 150% to 200% based on “advice of counsel.”

4. Beginning in 2003, the Association assessed a home on a single lot at 100%, an undeveloped vacant lot at 25%, and a residence spanning two lots, like the Petitioner’s, at 150%. The Petitioner received written confirmation of her reduced 150% assessment from the Board on March 24, 2003.

5. The Association’s Board increased the assessment after determining that all plats needed to be assessed uniformly, per the Association’s Restatement. The increase was meant to bring her two lots into compliance with the governing documents.

6. Bylaws Article IV, Section 6 states that “Special assessments must be fixed and apportioned at a uniform rate for all CR-1 lots, SR lots, and each 20,000 square feet of TR lots.”

7. The Judge’s conclusion was based on the undisputed fact that the Petitioner’s two properties, Lots 156 and 157, have never been officially combined or consolidated into a single numbered lot on the Pima County Assessor’s Office plat map.

8. The required standard of proof was a “preponderance of the evidence,” which means proving a contention is more probably true than not. The Judge found that the Petitioner failed to sustain her burden of proof.

9. The Judge ruled that the 2003 Board Order was not a binding contract because the Petitioner provided no proof of consideration tendered to the Association. Therefore, the Association’s governing documents took precedence over the informal agreement.

10. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Judge concluded that the Board’s action to uniformly assess all CR-1 lots did not violate state statutes or the Association’s Bylaws.

——————————————————————————–

Essay Questions

The following questions are designed for longer, more analytical responses. No answers are provided.

1. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Discuss the hierarchy of authority between the Association’s governing documents (CC&Rs) and a Board Order, as interpreted in this case.

2. Explain the concept of “burden of proof” in the context of this hearing. How did the Petitioner’s failure to meet the “preponderance of the evidence” standard lead to the denial of her petition?

3. The Petitioner’s case relied heavily on past practice and a 2003 Board decision to grant her a reduced assessment. Discuss why this argument was ultimately insufficient to overcome the explicit language of the Association’s governing documents.

4. Examine the contractual nature of a homeowners’ association’s CC&Rs as described in the Findings of Fact. How does this contractual relationship between the Association and each property owner shape the obligations and rights of both parties?

5. The Respondent (Sin Vacas POA) declined to present witnesses or exhibits, taking a passive stance at the hearing. Discuss the potential legal strategy behind this approach and how the undisputed material facts of the case made this a viable option.

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official, in this case Jenna Clark, who presides over administrative hearings, reviews evidence, makes Findings of Fact and Conclusions of Law, and issues orders.

Association

The Sin Vacas Property Owners Association, a homeowners’ association for the Sin Vacas subdivision in Tucson, Arizona, responsible for managing, maintaining, and improving the property.

Assessment

A fee levied by the Association on property owners to promote the recreation, health, safety, and welfare of residents and for the improvement and maintenance of common areas and private streets.

Bylaws

The specific articles and sections within the CC&Rs that govern the Association’s operations, including definitions, assessment rules, and voting procedures.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents for the Association, recorded with Pima County on April 13, 1978. They form an enforceable contract between the Association and each property owner.

Department

The Arizona Department of Real Estate, which is authorized by statute to receive and decide petitions for hearings from members of homeowners’ associations.

Any numbered lot shown upon any recorded subdivision map of the Sin Vacas Properties, with the exception of the Common Area. This case deals specifically with CR-1 lots.

OAH (Office of Administrative Hearings)

An independent state agency to which the Department refers matters for evidentiary hearings. The OAH has the authority to hear and decide contested cases and interpret contracts between parties.

Petitioner

Loraine Brokaw, a property owner in the Sin Vacas subdivision and member of the Association who filed the petition against the Association.

Planned Community

A real estate development where owners of separately owned lots are mandatory members of a nonprofit association and are required to pay assessments for the purpose of managing, maintaining, or improving the property.

Preponderance of the evidence

The standard of proof required for the Petitioner to win her case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents the greater weight of evidence.

Respondent

The Sin Vacas Property Owners Association, the entity against whom the petition was filed.

Select all sources
698354.pdf

No emoji found

Loading

19F-H1918017-REL

1 source

The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Loraine Brokaw (Petitioner) and the Sin Vacas Property Owners Association (Respondent). The Petitioner challenged the Association’s decision to raise her annual assessment, arguing that the increase was arbitrary and contravened a decades-long practice of assessing her two lots at a combined 150% rate, rather than the new 200% rate. The decision outlines the Findings of Fact and Conclusions of Law, confirming that the Association is governed by its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws, which require uniform assessment rates for all developed lots. Ultimately, the Administrative Law Judge concluded that the Petitioner failed to prove the Association violated any community documents or statutes, reasoning that the governing documents take precedence over any prior informal agreement, and denied the Petitioner’s request.

1 source

What was the core legal basis for rejecting the petitioner’s assessment challenge?
How did the Association’s governing documents dictate uniform assessment requirements?
What legal implications arose from the Board’s decision to change long-standing practice?

Based on 1 source

00:00
00:00

Case Participants

Petitioner Side

  • Loraine Brokaw (petitioner)

Respondent Side

  • Jason Smith (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Sin Vacas Property Owners Association
  • Sean Moynihan (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Counsel for Sin Vacas Property Owners Association

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Robert Brokaw (witness)
    Observed the hearing
  • Jack Juraco (witness)
    Observed the hearing

Jay A. Janicek vs. Sycamore Vista NO. 8 Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1918001-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-03-25
Administrative Law Judge Jenna Clark
Outcome total
Filing Fees Refunded $500.00
Civil Penalties $250.00

Parties & Counsel

Petitioner Jay A. Janicek Counsel Jake Kubert
Respondent Sycamore Vista No. 8 Homeowners Association Counsel Evan Thompson

Alleged Violations

ARIZ. REV. STAT. § 33-1804(B); Association Bylaws Article III, Sections 3 & 4; Association Bylaws Article VIII, Section 1

Outcome Summary

The ALJ granted the petition, concluding that the HOA Board’s unilateral amendment of the Bylaws on November 20, 2017, was an invalid action taken without the required vote of the Association members and without statutory notice, violating ARIZ. REV. STAT. § 33-1804(B) and the Association’s governing documents. The amendment was invalidated, and the Respondent was ordered to refund the Petitioner's filing fee and pay a $250.00 civil penalty.

Key Issues & Findings

Whether Sycamore Vista No. 8 Homeowners Association (Respondent) violated Association Bylaws Article III, Sections 3 & 4 and Article VIII, Section 1 in an action taken by the board on November 20, 2017.

The Board of Directors attempted a third amendment to the Bylaws on November 20, 2017, specifically changing the requirements for the Association's financial review (audit, review, or compilation). The ALJ concluded that this action was invalid because it was taken in the absence of a quorum of Association members voting in favor of the amendment, violating both the Bylaws and statutory notice requirements.

Orders: The petition was granted. The third amendment to the Association Bylaws taken on November 20, 2017, was invalidated. Respondent was ordered to pay the Petitioner the filing fee required by ARIZ. REV. STAT. § 32-2199.01 and pay a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1804(B)
  • Association Bylaws Article III

Analytics Highlights

Topics: HOA Governance, Bylaws Amendment, Open Meeting Law, ARS 33-1804, Membership Vote, Filing Fee Refund
Additional Citations:

  • ARIZ. REV. STAT. § 33-1804(B)
  • ARIZ. REV. STAT. § 32-2199.02(A)
  • ARIZ. REV. STAT. § 32-2199.05
  • Powell v. Washburn, 125 P.3d 373 (Ariz. 2006)
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Video Overview

Audio Overview

Decision Documents

19F-H1918001-REL Decision – 696205.pdf

Uploaded 2026-04-26T09:47:21 (169.8 KB)

19F-H1918001-REL Decision – 661797.pdf

Uploaded 2026-04-26T09:47:27 (143.2 KB)

19F-H1918001-REL Decision – 696205.pdf

Uploaded 2026-04-24T11:15:00 (169.8 KB)

19F-H1918001-REL Decision – 661797.pdf

Uploaded 2026-04-24T11:15:08 (143.2 KB)

19F-H1918001-REL Decision – 661797.pdf

Uploaded 2026-01-23T17:25:37 (143.2 KB)

19F-H1918001-REL Decision – 696205.pdf

Uploaded 2026-01-23T17:25:40 (169.8 KB)

Briefing Document: Janicek v. Sycamore Vista No. 8 Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Jay A. Janicek v. Sycamore Vista No. 8 Homeowners Association (No. 19F-H1918001-REL-RHG). The central issue was the validity of a bylaw amendment enacted by the Association’s Board of Directors on November 20, 2017, without a vote of the general homeowner membership.

The ALJ ruled decisively in favor of the Petitioner, Jay Janicek, finding that the Board’s action was invalid. The decision hinged on a critical interpretation of the Association’s governing documents, concluding that the term “members” in the context of bylaw amendments unambiguously refers to the homeowner membership, not the Board of Directors. The ruling established that the Board does not have the authority to amend bylaws where that power is reserved for the membership.

Furthermore, the ALJ concluded that the Board’s action violated Arizona’s Open Meeting Law (A.R.S. § 33-1804) by failing to provide the required notice to homeowners for a meeting concerning a proposed bylaw amendment. As a result, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.

Case Background and Procedural History

Parties and Jurisdiction

• Petitioner: Jay A. Janicek, a property owner within the Sycamore Vista subdivision and a member of the Respondent Association.

• Respondent: Sycamore Vista No. 8 Homeowners Association (“the Association”), a homeowners’ association in Tucson, Arizona, governed by its Covenants, Conditions, and Restrictions (CC&Rs) and overseen by a Board of Directors.

• Adjudicating Body: The Arizona Office of Administrative Hearings (OAH), an independent state agency, which received the case on referral from the Arizona Department of Real Estate.

The Central Dispute

The core of the dispute was an action taken by the Association’s Board of Directors during a regular meeting on November 20, 2017. At this meeting, the Board, with three of five directors present, voted to approve a third amendment to the Association’s Bylaws. The amendment altered Article VIII Section 6(d), changing the requirement for an annual financial check from:

“cause an annual audit of the Association books to be made by a public accountant at the completion of each fiscal year”

“cause an annual audit, review, or compilation of the Associations financial records to be made by a public accountant within 180 days after the end of the HOA’s fiscal year.”

The Petitioner contended this action was invalid because it was undertaken without a vote of the general Association membership, as he believed the governing documents required.

Timeline of Adjudication

1. July 25, 2018: Petitioner files a petition with the Arizona Department of Real Estate.

2. September 05, 2018: An initial evidentiary hearing is held before the OAH.

3. September 25, 2018: The OAH issues an ALJ Decision in the Petitioner’s favor.

4. October 23, 2018: The Respondent submits a Request for Rehearing.

5. November 07, 2018: The Department grants the rehearing request and refers the matter back to the OAH.

6. March 05, 2019: A rehearing is conducted, based on legal briefs and closing arguments without new evidence.

7. March 25, 2019: The final ALJ Decision is issued, reaffirming the initial ruling in favor of the Petitioner.

Analysis of Governing Documents and Statutes

The case decision rested on the interpretation of specific articles within the Association’s Bylaws and relevant Arizona state statutes.

Key Bylaw Provisions

Article

Section

Description

Article IV

Section 1

States that the “affairs of this Association shall be managed by a Board of not less than three (3) nor more than five (5) directors.”

Article VI

Section 1

Establishes that regular meetings of the Board of Directors shall be held monthly without notice.

Article VI

Section 2

Governs special meetings of the Board, requiring not less than three days’ notice to each Director.

Article VI

Section 3

Defines a quorum for Board meetings as “a majority of the number of Directors.”

Article VII

Section 1

Outlines the Powers and Duties of the Board of Directors. This section does not explicitly grant the Board the power to amend the Bylaws.

Article XIII

Section 1

(The central provision in the dispute) States: “These Bylaws may be amended at a regular or special meeting of the Board of Directors of the Association by a vote of a majority of a quorum of members present in person or by proxy.”

Relevant Arizona Statutes

• A.R.S. § 33-1804 (Open Meeting Law): This statute was central to the Petitioner’s argument and the ALJ’s final decision.

◦ Subsection (A): Requires that all meetings of the members’ association and the board of directors be open to all members of the association.

◦ Subsection (B): Mandates specific notice requirements for any meeting of the members, stating that notice “shall also state the purpose for which the meeting is called, including the general nature of any proposed amendment to the declaration or bylaws.”

◦ Subsection (F): The ALJ noted that this section codifies the legislative intent of the statute, which, as cited from a Governor’s message, is to “promote transparency and participation for all residents in homeowners’ association governance.”

Arguments of the Parties

Petitioner’s Position (Jay Janicek)

The Petitioner’s case was built on a textual interpretation of the Bylaws and adherence to state law.

• Interpretation of “Members”: The Petitioner argued that the word “members” in Article XIII, Section 1 refers to the general homeowner membership of the Association, not the members of the Board of Directors.

• Textual Differentiation: The drafters of the Bylaws intentionally used the words “members” and “directors” distinctly throughout the document. Where the intent was to refer to the Board, the word “Director” was specifically used (e.g., Article VI).

• Proxy Voting: The inclusion of the term “proxy” in Article XIII supports the argument that the vote is for the general membership, as Board members are not permitted to vote by proxy.

• Lack of Explicit Power: Article VII, which details the Board’s powers, does not grant the authority to amend the Bylaws, implying such power is reserved for the membership.

• Statutory Violation: The Board’s action violated A.R.S. § 33-1804 because the required notice for a meeting concerning a bylaw amendment was not provided to the general membership.

• Legal Precedent: The Petitioner cited Powell v. Washburn, an Arizona Supreme Court case holding that restrictive covenants (which he argued include the Bylaws) should be interpreted to give effect to the intention of the parties as determined from the entire document.

Respondent’s Position (Sycamore Vista No. 8 HOA)

The Association argued that its actions were a valid exercise of the Board’s authority.

• Broad Authority: The Respondent cited Article IV, which states the “affairs of this Association shall be managed by a Board,” to assert its general authority.

• Valid Board Meeting: The amendment occurred at a regular monthly Board meeting as allowed by Article VI. The meeting had three directors present, which constituted a valid quorum for transacting business.

• Interpretation of Article XIII: The Respondent argued that the phrase “at a regular or special meeting of the Board of Directors” in Article XIII indicates that the Board is the body empowered to make the amendment, and the word “members” in that context refers to the members of the Board.

• No Open Meeting Law Violation: The Respondent contended its conduct was not a violation because the action occurred during a regular Board meeting with a proper quorum of directors.

Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions were unequivocal, fully adopting the Petitioner’s interpretation of the governing documents and state law.

Conclusions of Law

• Burden of Proof: The ALJ found that the Petitioner successfully sustained his burden of proving by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1804.

• Interpretation of “Members” vs. “Directors”: The decision states that the governing documents are clear: “‘members’ refers to the body of owners who make up the membership of the Association, and ‘directors’ refers to the few who are elected to the membership’s Board.” The ALJ found the differentiation to be intentional by the drafters.

• Avoiding Absurdity: The decision holds that construing the Bylaws to allow the Board to amend them would create an absurdity. The ALJ wrote, “The voices of few cannot speak for all, unless all have bestowed those few with the power and authority to speak on their behalf.”

• Violation of Statute and Bylaws: The ALJ concluded that the Board’s action on November 20, 2017, violated both A.R.S. § 33-1804(B) due to a lack of notice and Article III of the Association Bylaws.

• Rejection of Respondent’s Argument: The decision explicitly states, “The Tribunal is not swayed by Respondent’s closing arguments.”

Final Order

Based on the findings and conclusions, the ALJ issued the following binding order:

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

2. Amendment Invalidated: The third amendment to the Association Bylaws, as enacted on November 20, 2017, was invalidated.

3. Fees and Penalties: The Respondent was ordered to pay the Petitioner’s filing fee and a civil penalty of $250.00 to the Planned Community Hearing Office Fund.

Study Guide: Janicek v. Sycamore Vista No. 8 Homeowners Association

Short-Answer Quiz

1. Who were the primary parties in the case No. 19F-H1918001-REL-RHG, and what were their respective roles?

2. What specific action taken by the Respondent on November 20, 2017, prompted the Petitioner to file a complaint?

3. According to the Petitioner, what was the crucial difference in meaning between the terms “members” and “directors” as used in the Association’s Bylaws?

4. What was the Respondent’s central argument for why the Board of Directors had the authority to amend the Bylaws at its regular meeting?

5. What is Arizona’s Open Meeting Law, and how did the Petitioner argue that the Respondent violated it?

6. What was the financial concern that the Petitioner argued could potentially impact him as a homeowner due to the Board’s amendment?

7. Describe the procedural history of this case after the initial Administrative Law Judge (ALJ) Decision on September 25, 2018.

8. What case did the Petitioner cite regarding the interpretation of restrictive covenants, and what principle did it establish?

9. What is the legal standard of proof required in this proceeding, and how is it defined in the document?

10. What was the final outcome of the case, including the specific orders issued by the Administrative Law Judge?

——————————————————————————–

Answer Key

1. The primary parties were Jay A. Janicek, the Petitioner, and the Sycamore Vista No. 8 Homeowners Association, the Respondent. The Petitioner is a property owner and member of the Association who brought the legal action, while the Respondent is the homeowners’ association governed by a Board of Directors.

2. On November 20, 2017, the Respondent’s Board of Directors held a regular meeting where they voted to approve a third amendment to the Association’s Bylaws. This amendment changed the requirement for an “annual audit…by a public accountant” to an “annual audit, review, or compilation” of financial records.

3. The Petitioner argued that the term “members” in Article XIII of the Bylaws refers to the entire body of property owners in the Association, not the Board of Directors. He contended that if the drafter had intended to give amendment power to the Board, the specific word “directors” would have been used, as it was in other sections of the Bylaws.

4. The Respondent argued that its actions were proper because the Bylaws empower the Board to manage the Association’s affairs at regular monthly meetings. They contended that since a quorum of three directors was present at the November 20, 2017 meeting, the Board was empowered to transact business, which they interpreted to include amending the bylaws as described in Article XIII.

5. Arizona’s Open Meeting Law is ARIZ. REV. STAT. § 33-1804, which requires meetings of a homeowners’ association’s board and members to be open to all members. The Petitioner argued the Respondent violated this by amending a bylaw without proper notice to the full membership, which is required for any proposed bylaw amendment, thus undermining the law’s legislative intent of transparency.

6. The Petitioner was concerned that the amendment weakened the financial oversight of the Association. It modified a requirement for a third-party audit to a less stringent “review, or compilation,” creating a risk that the Association could perform its own financial checks, and as a homeowner, he had an interest in ensuring the Association’s financials were correct.

7. After the initial decision in the Petitioner’s favor on September 25, 2018, the Respondent submitted a Request for Rehearing on October 23, 2018. The Department of Real Estate granted this request on November 7, 2018, and the matter was referred back to the Office of Administrative Hearings for a rehearing, which ultimately took place on March 5, 2019.

8. The Petitioner cited Powell v. Washburn. This case established the principle that restrictive covenants should be interpreted to give effect to the intention of the parties, as determined from the language of the entire document and the purpose for which the covenants were created.

9. The legal standard of proof was a “preponderance of the evidence.” The document defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with the most “convincing force” that inclines an impartial mind to one side of an issue.

10. The final outcome was a ruling in favor of the Petitioner. The ALJ granted the petition, invalidated the third amendment to the Bylaws that was passed on November 20, 2017, and ordered the Respondent to pay the Petitioner’s filing fee and a civil penalty of $250.00.

——————————————————————————–

Essay Questions

1. Analyze the Administrative Law Judge’s reasoning in differentiating between the terms “members” and “directors.” How did the principle of avoiding absurdity and considering the drafter’s intent, as seen throughout the Bylaws, contribute to the final decision?

2. Discuss the interplay between the Association’s governing documents (CC&Rs and Bylaws) and state law (ARIZ. REV. STAT. § 33-1804). Explain which authority took precedence in this case and why the Board’s actions were found to violate both.

3. Evaluate the legal strategy employed by the Petitioner, Jay A. Janicek. Consider his use of specific Bylaw articles, the citation of Powell v. Washburn, and his argument regarding the legislative intent of the Open Meeting Law.

4. Examine the arguments presented by the Respondent, Sycamore Vista No. 8 Homeowners Association. Why did the Judge find their interpretation of the Bylaws unconvincing, despite their claims that the Board was empowered to transact business with a quorum present?

5. Based on the text, discuss the broader implications of this ruling for homeowners’ associations in Arizona. How does this decision reinforce the principles of transparency and the limitations of a Board’s power relative to the association’s general membership?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge, in this case Jenna Clark, who presides over administrative hearings at the Office of Administrative Hearings (OAH).

ARIZ. REV. STAT. § 33-1804

A section of the Arizona Revised Statutes, also known as Arizona’s Open Meeting Law, which mandates that meetings of an HOA’s members and board of directors must be open to all members and requires specific notice for meetings where bylaw amendments will be considered.

Bylaws

A set of rules that govern the internal operations of the homeowners’ association. In this case, key articles discussed include Article VI (Meeting of Directors), Article VII (Powers of the Board), and Article XIII (Amendments).

Covenants, Conditions, and Restrictions. These are governing documents that form an enforceable contract between the Association and each property owner, empowering the Association to control certain aspects of property use.

Member

As defined in the Association’s documents, a person entitled to membership by virtue of being a property owner within the Sycamore Vista subdivision. The Judge concluded this term refers to the body of owners, not the Board of Directors.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona, unaffiliated with the parties, responsible for conducting evidentiary hearings and making legal decisions in disputes like this one.

Petitioner

The party who files a petition initiating a legal case. In this matter, the Petitioner was Jay A. Janicek, a homeowner in the Association.

Preponderance of the evidence

The burden of proof in this case. It is defined as evidence that is more likely true than not and has the most convincing force, sufficient to incline a fair and impartial mind to one side of an issue.

The authority to represent someone else, especially in voting. The document notes that the term “proxy” applies to votes of the members, as members of the Board are not permitted to vote by proxy.

Quorum

The minimum number of members of a deliberative assembly necessary to conduct the business of that group. For the Respondent’s Board of Directors, a quorum is defined as a majority of the number of Directors.

Respondent

The party against whom a petition is filed. In this matter, the Respondent was the Sycamore Vista No. 8 Homeowners Association.

Restrictive Covenants

Legal obligations imposed in a deed to real property to do or not do something. The Petitioner argued this term included the CC&Rs, Bylaws, and rules of the Association.

Tribunal

A body established to settle certain types of dispute. In this document, it refers to the Administrative Law Judge at the Office of Administrative Hearings.

Select all sources
696205.pdf

No emoji found

Loading

19F-H1918001-REL-RHG

1 source

The provided text is an Administrative Law Judge Decision from the Office of Administrative Hearings regarding a dispute between Jay A. Janicek (Petitioner) and the Sycamore Vista No. 8 Homeowners Association (Respondent). The core issue of the case, designated No. 19F-H1918001-REL-RHG, revolves around whether the Homeowners Association violated its Bylaws and Arizona state statute (§ 33-1804) when its Board of Directors unilaterally amended the Bylaws on November 20, 2017. The Administrative Law Judge determined that the Board’s action was invalid because the power to amend the Bylaws was delegated to the Association’s general membership, not the Board of Directors, and the Board failed to provide the required notice for such an amendment. Consequently, the Petitioner’s request was granted, the amendment was invalidated, and the Association was ordered to pay the Petitioner’s filing fee and a civil penalty.

1 source

What central conflict drove the administrative hearing and subsequent rehearing process?
How did governing documents and Arizona statutes shape the final legal decision?
What ultimate implications does this ruling have for homeowners association governance and member rights?

Based on 1 source

00:00
00:00

NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Jay A. Janicek (petitioner)
    Appeared on his own behalf at initial hearing; Observed rehearing
  • Jake Kubert (petitioner attorney)
    Dessaules Law Group
    Appeared at rehearing

Respondent Side

  • Evan Thompson (HOA attorney)
    Thompson Krone, P.L.C.
  • Maxwell T. Riddiough (HOA attorney)
    Thompson Krone, P.L.C.
  • Andrew F. Vizcarra (property manager)
    Tucson Realty & Trust Co. Management
    Recipient of correspondence for Respondent HOA

Neutral Parties

  • Jenna Clark (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Other Participants

  • Dennis Legere (observer)
    Present at initial hearing
  • Becky Nutt (observer)
    Present at initial hearing
  • Caleb Rhodes (observer)
    Present at initial hearing

Dina R. Galassini vs. Plaza Waterfront Condominiums Owners

Posted on by

Case Summary

Case ID 18F-H1818032-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-08-22
Administrative Law Judge Thomas Shedden
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dina R. Galassini Counsel —
Respondent Plaza Waterfront Condominium Owners Association, Inc. Counsel —

Alleged Violations

ARIZ. REV. STAT. § 32-2199.01; ARIZ. REV. STAT. § 33-1202

Outcome Summary

The Administrative Law Judge dismissed Petitioner’s petition for rehearing, concluding that the OAH has the authority, pursuant to statute and precedent, to resolve disputes involving the interpretation of condominium documents and related regulating statutes, rejecting Petitioner's constitutional claims regarding separation of powers. Respondent's request for attorney's fees was denied.

Why this result: Petitioner's argument that the original ALJ decision was contrary to law due to separation of powers violation was dismissed, as the OAH confirmed its statutory authority (ARIZ. REV. STAT. § 32-2199.01) to interpret condominium documents and regulating statutes.

Key Issues & Findings

Whether the Respondent Association correctly posted owner assessments for the 2018 parking lot budget

Petitioner sought rehearing arguing the ALJ lacked constitutional authority (separation of powers) to interpret condominium documents (contracts) and statutory definitions of common/limited common elements (ARIZ. REV. STAT. § 33-1202) related to the posting of the 2018 parking lot budget assessment.

Orders: Petitioner’s petition is dismissed. Respondent’s request for attorney’s fees is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1202
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)

Analytics Highlights

Topics: HOA Dispute, Assessment, Jurisdiction, ALJ Authority, Condominium Documents, Separation of Powers
Additional Citations:

  • ARIZ. REV. STAT. § 32-2199.01
  • ARIZ. REV. STAT. § 33-1202
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)
  • Ariz. Cannabis Nurses Ass'n v. Ariz. Dep't of Health Servs., 242 Ariz. 62, 67, 392 P.3d 506, 511 (App. 2017)
  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. REV. STAT. § 32-2199.02(B)
  • ARIZ. CONST. Art. 3

Video Overview

Audio Overview

Decision Documents

18F-H1818032-REL Decision – 655375.pdf

Uploaded 2026-04-26T09:46:00 (65.7 KB)

18F-H1818032-REL Decision – 636950.pdf

Uploaded 2026-04-26T09:46:08 (128.6 KB)

18F-H1818032-REL Decision – 655375.pdf

Uploaded 2026-04-24T11:11:36 (65.7 KB)

18F-H1818032-REL Decision – 636950.pdf

Uploaded 2026-04-24T11:11:39 (128.6 KB)

Briefing Document: Galassini v. Plaza Waterfront Condominium Owners Association, Inc. (Case No. 18F-H1818032-REL-RHG)

Executive Summary

This document analyzes the Administrative Law Judge (ALJ) Decision in case number 18F-H1818032-REL-RHG, which dismissed a petition filed by Dina R. Galassini against the Plaza Waterfront Condominium Owners Association, Inc. The central conflict revolved around the jurisdictional authority of the Office of Administrative Hearings (OAH). The Petitioner, Ms. Galassini, argued that the OAH, as part of the executive branch, violated the constitutional separation of powers by interpreting private condominium documents, a power she claimed was reserved exclusively for the judicial branch.

The ALJ, Thomas Shedden, rejected this argument and dismissed the petition as a matter of law. The decision affirms that the OAH is statutorily empowered by Arizona Revised Statutes to hear disputes concerning alleged violations of condominium documents. The ALJ’s rationale rests on established legal precedent, citing Tierra Ranchos Homeowners Ass’n v. Kitchukov to confirm that condominium documents are a contract and Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. to support an agency’s authority to take actions reasonably implied by its governing statutes. Consequently, the Petitioner’s core constitutional challenge was deemed “unfounded,” leading to the dismissal of her petition. While the petition was dismissed, the Respondent’s request for attorney’s fees was denied.

1. Case Background and Procedural History

The case involves a dispute between a condominium owner and a condominium association, brought before the Arizona Office of Administrative Hearings.

• Parties:

◦ Petitioner: Dina R. Galassini

◦ Respondent: Plaza Waterfront Condominium Owners Association, Inc.

• Forum: Office of Administrative Hearings, Phoenix, Arizona

• Presiding Judge: Thomas Shedden, Administrative Law Judge

• Decision Date: August 22, 2018

The matter arrived before Judge Shedden following a series of procedural steps initiated after an original ALJ decision.

• June 26, 2018: The Petitioner filed a Request for Rehearing with the Department of Real Estate.

• July 20, 2018: The Department of Real Estate issued an Order Granting Rehearing, based on the reasons outlined in the Petitioner’s request.

• August 15, 2018: The Respondent filed a Motion to Vacate Rehearing, arguing the case could be resolved as a matter of law.

• August 21, 2018: The Petitioner filed an Opposition to the Respondent’s motion.

2. Core Dispute: Petitioner’s Jurisdictional Challenge

The Petitioner’s request for a rehearing was founded on a direct constitutional challenge to the authority of the Administrative Law Judge. The underlying substantive issue concerned the association’s handling of “owner assessments for the 2018 parking lot budget,” which turned on the interpretation of “common element” versus “limited common element.”

Petitioner’s Arguments

• Violation of Separation of Powers: The Petitioner contended that the original ALJ decision was “contrary to law” because it involved the interpretation of private contracts (the condominium documents). She argued this function is reserved exclusively for the judicial branch under Arizona’s Constitution, Article 3 (Separation of Powers).

• Due Process Violation: By interpreting the contract, the ALJ allegedly committed a “due process violation.” The Petitioner stated, “For the ALJ to definitively interpret actual contracts between two private parties is a due process violation (separation of powers).”

• Improper Delegation of Power: The Petitioner claimed the ALJ’s action “redistributed interpreted power from the Judiciary to the Executive and this is a congressional encroachment on my rights.”

3. The Administrative Law Judge’s Legal Rationale and Decision

The ALJ agreed with the Respondent that the case could be resolved as a matter of law, focusing entirely on the jurisdictional question raised by the Petitioner. The decision systematically refutes the Petitioner’s separation of powers argument by outlining the OAH’s legal authority.

Statutory Authority

The decision establishes the OAH’s jurisdiction through Arizona state law:

• ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11: This statute describes the administrative process for referring disputes between owners and condominium associations to the OAH.

• ARIZ. REV. STAT. § 32-2199.01(A): This section specifically grants the OAH authority to conduct hearings for alleged “violations of condominium documents … or violations of the statutes that regulate condominiums….”

• ARIZ. REV. STAT. § 33-1202: The decision notes that analyzing the Petitioner’s claim inherently requires interpreting definitions found in the statutes that regulate condominiums, such as this section defining “common element” and “limited common element.”

Precedent from Case Law

The ALJ grounded the OAH’s interpretive authority in two key Arizona appellate court decisions:

1. Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007): This case is cited to establish the legal principle that “the condominium documents are a contract between the parties.” By defining the documents as a contract, the decision links the dispute directly to the type of documents the OAH is empowered to review.

2. Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs., 242 Ariz. 62, 392 P.3d 506 (App. 2017): This case is cited to support the broader principle of administrative authority. The ruling states, “[I]t is the law of this state that an agency may” take such action “which may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’” This supports the conclusion that the OAH’s authority to hear disputes over condominium documents implies the authority to interpret them.

Conclusion of the Court

Based on the cited statutes and case law, the ALJ concluded that the OAH possesses the necessary authority to interpret both the condominium documents and the relevant state statutes. Therefore, the Petitioner’s central argument that the original decision was “contrary to law” was declared “unfounded,” and dismissing the matter was deemed appropriate.

4. Final Orders and Directives

The Administrative Law Judge issued the following final orders on August 22, 2018:

Outcome

Petitioner’s Petition

Dismissed

Respondent’s Request for Attorney’s Fees

Denied

The decision also included the following legally mandated notices for the parties:

• Binding Nature: The order is binding on the parties as a result of the rehearing, per ARIZ. REV. STAT. § 32-2199.02(B).

• Appeal Rights: A party wishing to appeal the order must seek judicial review by filing with the superior court within thirty-five (35) days from the date the order was served. The appeal process is prescribed by ARIZ. REV. STAT. title 12, chapter 7, article 6 and § 12-904(A).

Study Guide: Galassini v. Plaza Waterfront Condominium Owners Association, Inc.

This study guide provides a detailed review of the Administrative Law Judge Decision in case number 18F-H1818032-REL-RHG, issued by the Arizona Office of Administrative Hearings. It is designed to assess comprehension of the case’s key arguments, legal precedents, and procedural history.

——————————————————————————–

Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, using only information provided in the source document.

1. Identify the Petitioner and the Respondent in this case and state the official case number.

2. What was the Petitioner’s core legal argument for requesting a rehearing, as detailed in her filing on June 26, 2018?

3. On what grounds did the Respondent file a Motion to Vacate Rehearing on August 15, 2018?

4. According to the Petitioner’s Response, what was the specific issue that the Department’s Commissioner had ordered the rehearing to address?

5. Which Arizona Revised Statute section is cited as describing the process for hearings on disputes between owners and condominium associations?

6. To resolve the Petitioner’s claim, the Administrative Law Judge (ALJ) needed to interpret the definitions of what two key terms from the Arizona Revised Statutes?

7. What legal precedent was cited in the decision to establish that condominium documents are considered a contract between the parties?

8. What was the final decision issued by Administrative Law Judge Thomas Shedden on August 22, 2018, regarding the Petitioner’s petition and the Respondent’s request for attorney’s fees?

9. According to ARIZ. REV. STAT. section 32-2199.02(B), what is the legal status of an administrative law judge order that has been issued as the result of a rehearing?

10. What specific steps must a party take to appeal this order, including the timeframe and the court where the appeal must be filed?

——————————————————————————–

Answer Key

1. The Petitioner is Dina R. Galassini, and the Respondent is Plaza Waterfront Condominium Owners Association, Inc. The official case number is 18F-H1818032-REL-RHG.

2. The Petitioner argued that the original Administrative Law Judge’s decision was contrary to law because it violated the principle of separation of powers. She claimed that by interpreting contracts between private parties, the ALJ, part of the Executive branch, encroached upon the power of the Judiciary, resulting in a due process violation.

3. The Respondent argued that the matter could be resolved as a matter of law. This argument was based on ARIZ. REV. STAT. section 32-2199.01, which governs administrative hearings for condominium disputes.

4. The Petitioner asserted in her Response that the Department’s Commissioner had ordered a rehearing specifically on the issue of whether the Respondent Association had correctly posted owner assessments for the 2018 parking lot budget.

5. ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11, specifically section 32-2199.01(A), is cited as governing the process. It states that hearings are conducted for alleged “violations of condominium documents … or violations of the statutes that regulate condominiums.”

6. To analyze the Petitioner’s claim, the ALJ needed to interpret the definitions of “common element” and “limited common element.” These definitions are found in ARIZ. REV. STAT. section 33-1202.

7. The case Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007) was cited to support the legal principle that condominium documents (like CC&Rs) constitute a contract between the parties involved.

8. Administrative Law Judge Thomas Shedden ordered that the Petitioner’s petition be dismissed. He further ordered that the Respondent’s request for attorney’s fees be denied.

9. According to the statute, an administrative law judge order issued as a result of a rehearing is binding on the parties.

10. A party wishing to appeal the order must seek judicial review as prescribed by ARIZ. REV. STAT. title 12, chapter 7, article 6. The appeal must be filed with the superior court within thirty-five days from the date the order was served.

——————————————————————————–

Essay Questions

Instructions: The following questions are designed for a more in-depth, essay-style response. Answers are not provided.

1. Analyze the Petitioner’s “separation of powers” argument. Explain why she believed the ALJ’s decision constituted a due process violation and a congressional encroachment on her rights, and discuss how the final decision legally refuted this claim.

2. Detail the legal basis and precedents cited by the Administrative Law Judge to establish the authority of the Office of Administrative Hearings (OAH). Explain how ARIZ. REV. STAT. section 32-2199.01(A) and the cases Tierra Ranchos Homeowners Ass’n v. Kitchukov and Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. were used to justify the OAH’s jurisdiction in this matter.

3. Trace the procedural history of this case from the Petitioner’s Request for Rehearing to the final Administrative Law Judge Decision. Include key dates, motions filed by both parties, and the reasoning behind the Department of Real Estate’s initial decision to grant a rehearing.

4. Discuss the relationship between condominium documents and state statutes as presented in this decision. How does the ruling define condominium documents, and what authority does it grant the OAH in interpreting both these documents and the statutes that regulate condominiums?

5. Based on the final decision and the provided notice, explain the legal options available to the Petitioner following the dismissal of her petition. What specific steps must be taken to pursue an appeal, and what legal standard is established by ARIZ. REV. STAT. section 32-2199.02(B) regarding the finality of the ALJ’s order?

——————————————————————————–

Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings. In this case, Thomas Shedden of the Office of Administrative Hearings.

Common Element

A term defined in ARIZ. REV. STAT. section 33-1202. The interpretation of this term was central to the Petitioner’s original dispute.

Condominium Documents

The governing documents of a condominium association (e.g., CC&Rs). The decision establishes these as a contract between the parties, citing Tierra Ranchos Homeowners Ass’n v. Kitchukov.

Department of Real Estate

The state agency that issued the Order Granting Rehearing in this matter on July 20, 2018.

Due Process Violation

An alleged infringement of legal rights. The Petitioner claimed this occurred when the ALJ interpreted a contract between private parties.

Judicial Review

The legal process by which a party can appeal an administrative order to a court. The decision specifies this must be done by filing with the superior court within 35 days.

Limited Common Element

A term defined in ARIZ. REV. STAT. section 33-1202. The interpretation of this term was central to the Petitioner’s original dispute.

Motion to Vacate Rehearing

A formal request filed by the Respondent on August 15, 2018, arguing that the case could be resolved as a matter of law.

Office of Administrative Hearings (OAH)

The state office where disputes between owners and condominium associations are referred for hearings, as per ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

Petitioner

The party initiating a legal petition. In this case, Dina R. Galassini.

Request for Rehearing

A formal request filed by the Petitioner on June 26, 2018, after an initial decision, which was granted by the Department of Real Estate.

Respondent

The party against whom a petition is filed. In this case, Plaza Waterfront Condominium Owners Association, Inc.

Separation of Powers

A constitutional principle cited by the Petitioner. She argued that only the judicial branch, not the executive branch (where the OAH resides), can make decisions that legally bind private parties.

4 Surprising Legal Lessons from a Condo Parking Lot Dispute

Introduction: The Anatomy of a Neighborhood Fight

Disputes with a Condominium or Homeowner’s Association are a common, and often frustrating, part of modern life. But what happens when a seemingly minor conflict over assessments for the 2018 parking lot budget escalates into a direct challenge to the power of the state?

The case of Dina R. Galassini vs. the Plaza Waterfront Condominium Owners Association, Inc. did just that. This neighborhood fight quickly grew to question fundamental legal principles, revealing some counter-intuitive truths about the power and jurisdiction of administrative agencies. The final court decision provides a masterclass in administrative law, a powerful, court-like system designed for efficiency that operates with more flexibility and authority than most people realize. Here are the top surprising takeaways from the final ruling.

Takeaway 1: Administrative Agencies Can Act Like Courts

At the heart of her appeal, Ms. Galassini made a powerful constitutional argument: she believed that only a judge in the judicial branch—not an administrator in the executive branch—had the authority to interpret a private contract like her condominium documents.

In her “Request for Rehearing,” she argued forcefully:

The decision by the administrative law judge (ALJ) is contrary to law, and the decision that was handed down to me only belongs in the judicial branch. Regarding what is a common element or a limited common element (see Exhibit C) should only be decided upon by a judge. For the ALJ to definitively interpret actual contracts between two private parties is a due process violation (separation of powers). In doing so the ALJ redistributed interpreted power from the Judiciary to the Executive and this is a congressional encroachment on my rights. According to Arizona’s Constitution Article 3, Separation of Powers—only the judicial branch can make decisions that make decisions that bind private parties as law.

The surprising outcome was that the Administrative Law Judge (ALJ) rejected this argument entirely. The judge found that the Office of Administrative Hearings was specifically empowered by Arizona statutes (ARIZ. REV. STAT. section 32-2199.01(A)) to handle disputes involving “violations of condominium documents.” Creating specialized administrative bodies like this is a common legislative strategy. It provides expert, efficient resolution for specific types of disputes, preventing the judicial courts from being overwhelmed.

Takeaway 2: Your Condo Agreement is a Legally Binding Contract

The ALJ’s authority to reject such a powerful constitutional claim hinged on a foundational question: what exactly are a condo’s governing documents in the eyes of the law? The answer is what gives administrative bodies their power in these disputes.

The decision affirms that these documents are not just community guidelines, but a formal, legally binding contract between the unit owner and the association. To support this, the judge referenced the legal precedent set in Tierra Ranchos Homeowners Ass’n v. Kitchukov, which established that “the condominium documents are a contract between the parties.”

This is a critical takeaway because by defining these governing documents as a contract, it provides the legal foundation for an administrative body, like the Office of Administrative Hearings, to step in and resolve disputes using principles of contract law.

Takeaway 3: An Agency’s Power Can Be “Reasonably Implied”

Another surprising lesson from the decision is that a government agency’s authority doesn’t always have to be spelled out word-for-word for every possible action it might take.

To make a broader point about administrative law, the judge cited a separate case, Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs. The principle from that case is that an agency can take actions that “may be reasonably implied from ‘a consideration of the statutory scheme as a whole.’”

This concept is crucial for government to function. Legislatures cannot possibly foresee and explicitly write laws for every conceivable scenario an agency might face. This doctrine of “implied power” allows agencies the flexibility to adapt and act effectively within the spirit of the law, fulfilling their duties based on the overall purpose of the statutes they enforce.

Takeaway 4: Winning a Rehearing Isn’t Winning the War

The case’s procedure offers a fascinating lesson in legal strategy. The Department of Real Estate initially granted the petitioner’s request for a rehearing, a decision made, crucially, “for the reasons outlined in Petitioner’s Request for Rehearing.” This shows the Department initially found her legal argument about separation of powers compelling enough to warrant a second look.

However, the outcome was deeply ironic. Instead of re-arguing the facts, the respondent (the Condo Association) “filed a Motion to Vacate Rehearing, arguing that… this matter can be resolved as a matter of law” (meaning no facts were in dispute, only the interpretation of the statutes and contracts).

The ALJ agreed. The petitioner, by winning the rehearing, had inadvertently given the respondent a perfect platform to argue the case on purely legal grounds—the respondent’s strength. The rehearing forced the core jurisdictional issue to the forefront, leading directly to the dismissal of the petitioner’s case. It’s a stark reminder that a procedural victory doesn’t guarantee a final win.

Conclusion: The Law in Your Daily Life

Born from a dispute over a parking lot, this single case reveals the hidden legal machinery designed to resolve specific conflicts efficiently, without overburdening the traditional court system. It demonstrates how everyday disagreements can touch upon complex principles of constitutional power, contract law, and implied statutory authority. From a simple assessment, we see a system where administrative bodies act with court-like power, a power built upon the contractual nature of community rules and the flexibility of implied authority. It’s a powerful reminder of the intricate legal frameworks operating just beneath the surface of our daily lives.

What hidden legal complexities might be shaping the rules and agreements in your own life?

Case Participants

Petitioner Side

  • Dina R. Galassini (petitioner)

Respondent Side

  • Jim Flood (board member)
  • Roger Isaacs (witness)
  • Gary Pedersen (witness, statutory agent)

Neutral Parties

  • Jenna Clark (ALJ)
  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)

Other Participants

  • Peter Saiia (observer)
  • Suzanne Isaacs (observer)
  • Paul Blessing (observer)
  • Felicia Del Sol (unknown)