Richard Busack v. The Cliffs Condominium Association

Posted on December 16, 2022 by [email protected]

Case Summary

Case ID	23F-H010-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2022-12-16
Administrative Law Judge	Tammy L. Eigenheer
Outcome	The Administrative Law Judge denied the petition, concluding that the responsibility for maintaining the leaking pipe and the resulting damage fell under the owner of the unit served by the pipe (Unit 263) as defined by Article III, Section 3.07 of the CC&Rs, not the HOA.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Richard Busack	Counsel	—
Respondent	The Cliffs Condominium Association	Counsel	Melissa Doolan

Alleged Violations

Article III, Section 3.07 of the Declaration of Establishment of Condominium and of Declaration of Covenants, Conditions, and Restrictions for The Cliffs Condominium

Outcome Summary

The Administrative Law Judge denied the petition, concluding that the responsibility for maintaining the leaking pipe and the resulting damage fell under the owner of the unit served by the pipe (Unit 263) as defined by Article III, Section 3.07 of the CC&Rs, not the HOA.

Why this result: The ALJ’s interpretation of Article III, Section 3.07 found that the owner of Unit 263 was responsible for the maintenance and repair of the specific section of pipe that leaked, and therefore, the HOA was not liable for the resulting damage or requested reimbursement.

Key Issues & Findings

HOA responsibility for reimbursement for kitchen cabinet and countertop replacement and mold remediation/restoration after a leaking pipe.

Petitioner sought reimbursement of $8541.00 from the HOA for damages caused by Cat 3 water coming from a leaking toilet pipe located between the ceiling of unit 163 and the subfloor of unit 263. Petitioner alleged the pipe was the HOA's responsibility as it was in the inner walls and not 'open and unobstructed' as defined by Petitioner. The ALJ determined the pipe maintenance was the responsibility of the owner of Unit 263, not the HOA, based on the plain reading of Article III, Section 3.07.

Orders: Petitioner’s petition is denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 32-2199 et seq.
A.A.C. R2-19-119
Article III, Section 3.07 (CC&Rs)

Analytics Highlights

Topics: HOA Responsibility, CC&Rs Interpretation, Pipe Maintenance, Water Damage Reimbursement, Owner Responsibility

Additional Citations:

A.R.S. § 32-2199 et seq.
Article III, Section 3.07 (CC&Rs)

Video Overview

Audio Overview

Decision Documents

23F-H010-REL Decision – 1020439.pdf

Uploaded 2026-01-23T17:51:22 (91.6 KB)

This summary details the hearing proceedings, key arguments, and final decision in the matter of *Richard Busack v. The Cliffs Condominium Association* (docket number 23FH010REL), heard on December 7, 2022, before Administrative Law Judge Tammy L. Eigenheer.

Key Facts and Issues

Petitioner Richard Busack filed a petition against The Cliffs Condominium Association (HOA), alleging the HOA violated Article III, Section 3.07 of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs). The dispute stemmed from a severe water leak that occurred on or about June 1, 2022, damaging Petitioner's unit (Unit 163).

The leak originated from a broken pipe within the inner walls, specifically the toilet line coming from Unit 263. The water was identified as CAT 3 water (toilet water/scat water), leading to extensive water damage and mold in Petitioner’s kitchen, requiring cabinet replacement and mold remediation.

The HOA subsequently repaired the broken pipe and replaced the drywall. However, the HOA denied Petitioner’s claim for reimbursement for mold remediation and kitchen restoration, which totaled $8,541.00.

Key Arguments and Legal Points

The central legal issue was the interpretation and application of Article III, Section 3.07 of the CC&Rs, which governs "Maintenance By Owners".

Petitioner’s Position: Petitioner argued that because the pipe broke in the "inner walls" and was not "unobstructed," it was outside his responsibility and, therefore, the HOA’s. He argued that he was only responsible if the leak originated inside his unit. Petitioner also noted that the HOA delayed response for 40 days and canceled agreed-upon cabinet repairs.
Respondent’s Position (HOA): The HOA argued that based on Section 3.07, the maintenance responsibility lay with the unit owner (specifically Unit 263's owner) because the pipe was located between the point it entered Unit 263 and where it joined lines serving other units. The HOA asserted that Petitioner provided no evidence (official reports) proving mold damage or that the HOA acted negligently. They repaired the drywall only because bearing walls are considered Common Elements under a separate section (3.05).

Outcome and Final Decision

The Administrative Law Judge (ALJ) issued an Administrative Law Judge Decision on December 16, 2022.

Interpretation of CC&Rs: The ALJ found Petitioner’s reading of Article III, Section 3.07 to be erroneous. The section clearly states that the owner is responsible for the maintenance, repair, and replacement of all utility lines "serving an Owner’s respective Condominium Unit between the points at which the same enter the respective Condominium Unit and the points where the same joins the utility lines serving other Condominium Units".
Pipe Responsibility: The ALJ concluded that the maintenance of the leaking pipe, which Petitioner acknowledged was between the point it entered Unit 263 and where it joined the utility lines serving other units, was the responsibility of the owner of Unit 263.
"Open and Unobstructed Condition": The ALJ clarified that the phrase "open and unobstructed condition" refers to the pipe itself not being *clogged*, not whether the pipe is accessible (i.e., not inside a wall).
Order: The Petitioner failed to prove by a preponderance of the evidence that the HOA violated Article III, Section 3.07. Therefore, the Petitioner’s petition was denied.

Questions

Question

Is the HOA automatically responsible for a pipe leak just because the pipe is located inside the walls between units?

Short Answer

No. Governing documents may assign responsibility to the specific unit owner served by that pipe, even if the pipe runs outside the unit's boundaries.

Detailed Answer

Even if a pipe is physically located outside a specific unit (e.g., between the unit and the main line), the CC&Rs may dictate that the owner is responsible for the utility lines serving their unit up to the point where they join the common utility lines. Location inside a wall does not automatically make it an HOA common element.

Alj Quote

Rather, unit owners are responsible for the maintenance of all sewer and drainage pipes 'between the points at which the [pipes] enter [the unit] and the points where the [pipe] joins the utility lines serving other Condominium Units.'

Legal Basis

CC&Rs Interpretation

Topic Tags

maintenance responsibility
plumbing
common elements

Question

What does 'open and unobstructed condition' mean regarding pipe maintenance in CC&Rs?

Short Answer

It generally means the pipe must be kept free of clogs, not that the pipe must be physically visible or outside of a wall.

Detailed Answer

Homeowners often misinterpret this phrase to mean that if a pipe is enclosed in a wall, it is not 'open' and therefore not their responsibility. However, the ALJ ruled that this language refers to the flow within the pipe—specifically, that the owner must ensure the pipe does not remain clogged.

Alj Quote

Rather than referencing that access to the pipe had to be open and unobstructed, i.e., not inside a wall, a plain reading of 'open and unobstructed condition' means that the pipe itself must not be allowed to remain clogged.

Legal Basis

Contract Interpretation

Topic Tags

definitions
maintenance responsibility

Question

If the HOA repairs the drywall after a leak, does that mean they admit responsibility for the plumbing repair and other damages?

Short Answer

No. The HOA may repair structural elements they are responsible for (like bearing walls) without accepting liability for the leak source or personal property damage.

Detailed Answer

The HOA can perform repairs on components defined as Common Elements (such as bearing walls) without conceding that they are liable for the pipe that caused the damage or for other resulting damages like cabinetry or mold.

Alj Quote

Respondent’s counsel indicated that the HOA repaired the drywall because Article III, Section 3.05 defines bearing walls as Common Elements.

Legal Basis

CC&Rs / Negligence

Topic Tags

repairs
liability
common elements

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The homeowner (Petitioner) has the burden to prove the HOA violated the governing documents.

Detailed Answer

The homeowner must provide evidence that outweighs the evidence offered by the HOA. Simply alleging a violation is not enough; the petitioner must prove it by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs. A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

procedural requirements
burden of proof

Question

What evidence is required to win a dispute regarding water damage repairs?

Short Answer

The homeowner must prove the HOA violated a specific provision of the CC&Rs or acted negligently.

Detailed Answer

Even if a homeowner suffers significant damage, they cannot recover costs from the HOA unless they can establish that the HOA had a legal duty to prevent or repair the specific cause of the damage under the CC&Rs.

Alj Quote

Petitioner failed to establish that Respondent violated Article III, Section 3.07 of the CC&Rs. … IT IS ORDERED that Petitioner’s petition is denied.

Legal Basis

CC&Rs Violation

Topic Tags

evidence
damages

Question

Can I hold the HOA responsible for a leak originating from a neighbor's unit?

Short Answer

Generally, no, unless the HOA is responsible for that specific pipe section under the CC&Rs.

Detailed Answer

If the leak comes from a pipe serving a specific unit (even if located outside that unit), maintenance responsibility often falls on that unit owner, not the HOA. The ALJ found that maintenance of such a pipe was the responsibility of the unit owner it served.

Alj Quote

Therefore, maintenance of the leaking pipe… was the responsibility of the owner of Unit 263.

Legal Basis

CC&Rs / Liability

Topic Tags

neighbor disputes
liability
plumbing

Case

Docket No: 23F-H010-REL
Case Title: Richard Busack v. The Cliffs Condominium Association
Decision Date: 2022-12-16
Alj Name: Tammy L. Eigenheer
Tribunal: OAH
Agency: ADRE

Questions

Question

Is the HOA automatically responsible for a pipe leak just because the pipe is located inside the walls between units?

Short Answer

No. Governing documents may assign responsibility to the specific unit owner served by that pipe, even if the pipe runs outside the unit's boundaries.

Detailed Answer

Alj Quote

Legal Basis

CC&Rs Interpretation

Topic Tags

maintenance responsibility
plumbing
common elements

Question

What does 'open and unobstructed condition' mean regarding pipe maintenance in CC&Rs?

Short Answer

It generally means the pipe must be kept free of clogs, not that the pipe must be physically visible or outside of a wall.

Detailed Answer

Alj Quote

Legal Basis

Contract Interpretation

Topic Tags

definitions
maintenance responsibility

Question

If the HOA repairs the drywall after a leak, does that mean they admit responsibility for the plumbing repair and other damages?

Short Answer

No. The HOA may repair structural elements they are responsible for (like bearing walls) without accepting liability for the leak source or personal property damage.

Detailed Answer

Alj Quote

Respondent’s counsel indicated that the HOA repaired the drywall because Article III, Section 3.05 defines bearing walls as Common Elements.

Legal Basis

CC&Rs / Negligence

Topic Tags

repairs
liability
common elements

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The homeowner (Petitioner) has the burden to prove the HOA violated the governing documents.

Detailed Answer

The homeowner must provide evidence that outweighs the evidence offered by the HOA. Simply alleging a violation is not enough; the petitioner must prove it by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated the CC&Rs. A.A.C. R2-19-119.

Legal Basis

A.A.C. R2-19-119

Topic Tags

procedural requirements
burden of proof

Question

What evidence is required to win a dispute regarding water damage repairs?

Short Answer

The homeowner must prove the HOA violated a specific provision of the CC&Rs or acted negligently.

Detailed Answer

Alj Quote

Petitioner failed to establish that Respondent violated Article III, Section 3.07 of the CC&Rs. … IT IS ORDERED that Petitioner’s petition is denied.

Legal Basis

CC&Rs Violation

Topic Tags

evidence
damages

Question

Can I hold the HOA responsible for a leak originating from a neighbor's unit?

Short Answer

Generally, no, unless the HOA is responsible for that specific pipe section under the CC&Rs.

Detailed Answer

Alj Quote

Therefore, maintenance of the leaking pipe… was the responsibility of the owner of Unit 263.

Legal Basis

CC&Rs / Liability

Topic Tags

neighbor disputes
liability
plumbing

Case

Docket No: 23F-H010-REL
Case Title: Richard Busack v. The Cliffs Condominium Association
Decision Date: 2022-12-16
Alj Name: Tammy L. Eigenheer
Tribunal: OAH
Agency: ADRE

Case Participants

Petitioner Side

Richard Busack (petitioner)
Theresa Jensen (witness)
Witness for Petitioner

Respondent Side

Melissa Doolan (respondent attorney)
The Travis Law Firm, PLC
Appeared for Respondent The Cliffs Condominium Association
Mr. Petri (HOA/management representative)
Mentioned by Petitioner regarding dispute over damage repair
Mr. Honen (HOA/management representative)
Involved in cabinet repair communication and cancellation (also referred to as Mr. Horn)
Miss Cohen (HOA/management representative)
Handled initial communications and forwarded information to the Board (also referred to as Miss Cohan)

Neutral Parties

Tammy L. Eigenheer (ALJ)
OAH
Also referred to as Tammy Igner
Louis Dettorre (ADRE Commissioner)
Arizona Department of Real Estate
Miranda Alvarez (legal secretary)
Transmitted decision
A. Hansen (ADRE staff)
Arizona Department of Real Estate
V. Nunez (ADRE staff)
Arizona Department of Real Estate
D. Jones (ADRE staff)
Arizona Department of Real Estate
L. Abril (ADRE staff)
Arizona Department of Real Estate

Other Participants

Jill Bird (observer)
John (observer)
Michael (observer)
Anthony Zeller (contractor associate)
Overseeing the repair plumber

Michael J Stoltenberg v. Rancho Del Oro Homeowners Association

Posted on August 3, 2020 by [email protected]

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.

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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?

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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

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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.

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?

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 July 14, 2020 by [email protected]

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

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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.

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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.

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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.

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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.

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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.

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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?

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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.

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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.”

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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.

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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.

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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